State v. Jesse

1

State of Kansas, Appellee, v. Brian Curtis Jesse, Appellant.

No. 125,826

Court of Appeals of Kansas

January 19, 2024

NOT DESIGNATED FOR PUBLICATION

Appeal from Shawnee District Court; BRETT A. WATSON, judge. Submitted without oral argument.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.

Jodi Litfin, deputy district attorney, Michael Kagay, district attorney, and Kris W. Kobach, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., ATCHESON, J., and TIMOTHY G. LAHEY, S.J.

MEMORANDUM OPINION

ARNOLD-BURGER, C.J.:

Brian Curtis Jesse appeals the district court's decision to revoke his probation and impose the underlying sentence. First, he contests the conclusion that he violated probation by committing the offense of interference with law enforcement. Second, he argues that his underlying prison sentence violates equal protection principles. After reviewing the issues presented, we affirm the district court's decision to revoke Jesse's probation and impose the underlying sentence.

FACTUAL AND PROCEDURAL HISTORY

Jesse agreed to plead guilty in Shawnee County to one felony count of possession of less than one gram of methamphetamine with the intent to distribute. The plea agreement anticipated that his criminal history would be an E, which would place Jesse in a border box on the sentencing grid. The State agreed not to oppose border box findings if Jesse could produce evidence to support such findings. The district court accepted Jesse's plea and ordered a presentence investigation report (PSI).

The PSI report reflected that Jesse had a criminal history score of C, because of a prior person felony conviction for attempted aggravated burglary in 2015. Jesse moved for a downward dispositional or durational departure. He argued in part that the age and nature of his 2015 attempted aggravated burglary conviction justified a departure because legislative changes in 2016 made it so that his underlying conduct-shoplifting from a Wal-Mart after being banned from the store-would no longer be considered aggravated burglary under current law. See K.S.A. 2016 Supp. 21-5807; L. 2016, ch. 90, § 3 (amending definition of burglary to exclude "entering into or remaining in a retail or commercial premises at any time that it is open to the public after having received a personal communication from the owner or manager of such premises not to enter such premises"). To support this point Jesse included a copy of the complaint, which showed a charge in 2014 for aggravated burglary based on an alleged shoplifting at Walmart after he had been banned, as described in his motion.

The district court ultimately granted Jesse's motion for a dispositional departure, imposing an underlying 42-month prison sentence based on his C criminal history score suspended for an 18-month probation term. The district court explained that the "strongest reason" to grant a departure was that his prior conviction would have been charged differently under current law. The district court also stated it would authorize the transfer of Jesse's probation to Clay County because Jesse resided there.

Just three months later, the State moved to revoke Jesse's probation, alleging he had failed to report to his probation officer and that he had committed a new felony offense of interference with law enforcement. At the hearing on the motion, the State called several witnesses and Jesse testified on his own behalf.

As to Jesse's alleged failure to report, his probation officer testified that she was assigned to Jesse's case on the day of sentencing. Jesse did not report as required after sentencing, so she sent him a letter to his address in Clay Center, directing him to report in Shawnee County on June 1 2022. She received no response, but Jesse met with her in person on the required date-a clear indication that he had received the letter. She explained the standard terms of probation and directed him to return a week later to complete an assessment, but Jesse failed to report as directed. She sent another letter to Jesse's address in Clay Center on June 20, 2022, directing him to report on June 27, 2022. She had no further contact with Jesse after that. According to her notes, Jesse's probation did not include a transfer, but he did set a goal "that he needs to get out of Clay Center." She had no record of a transfer of probation to Clay County but said she usually tells her probationers they must report to her before any transfer and that some counties require completion of a risk assessment for a transfer.

As to the interference with law enforcement charge, Clay Center Police Chief Bill Robinson testified that he received a tip on July 20, 2022, that someone resembling Cade Schultz-who had an active felony arrest warrant-had ridden his motorcycle into the garage at Jesse's residence. Robinson went there and knocked on the front door while a deputy kept watch at the back door. Two young children answered the door and responded, "Yes" when Chief Robinson asked if Schultz was inside. Robinson asked if he could speak to Schultz and the children again responded, "Yes" before closing the door.

After waiting a bit, Robinson knocked on the door again and Jesse answered. Robinson explained to Jesse that he had received a tip about Schultz and that the children had just said Schultz was inside. Jesse responded that Schultz and his girlfriend had been there earlier but left before Robinson arrived. Robinson clarified to Jesse that he believed he had probable cause to get a warrant to search the house, so it would be a felony if Jesse was discovered harboring a fugitive of a felony arrest warrant. Robinson said he told Jesse to send Schultz out or they would obtain a search warrant. Jesse said he understood and went back inside, closing the door.

Robinson called for additional officers to surround the house, while he went back to his office to apply for a search warrant. Once the warrant was granted, he returned to Jesse's house. As he was walking up to the house, Robinson heard officers yelling that Schultz had exited the house and was running. After apprehending Schultz, the officers arrested Jesse for interference with law enforcement.

Jesse admitted that he last met with his probation officer on June 1, 2022, saying he had no further contact with her after that meeting because he believed his probation was being transferred to Clay County. Jesse denied receiving any other letters after the June 1 meeting. Jesse said he tried to call his probation officer, but she never answered. He did not report in Shawnee County due to not having a valid driver's license to transport himself from Clay Center. Jesse testified that he did not know Schultz was still present when he first spoke with Robinson and only found out after the conversation. Jesse did not send Schultz outside or tell the officers because Schultz "wouldn't let [him] go outside."

At the end of the hearing, the district court found, based on the evidence presented, that Jesse had violated his probation by failing to report and remain law abiding. In particular, the district court found Jesse's testimony lacked credibility, including both in his statements that he believed his probation was being transferred to Clay County and that he was unaware of Schultz' presence when he first spoke to Robinson. The district court found it was "more likely to believe that the defendant was aware of that fact, and closed the door, misinformed the law enforcement officers about [Schultz'] presence in the house for the specific purpose of thwarting the execution of service of process."

Jesse opposed revocation of probation, but recognized that the district court could do so and order him to serve his underlying sentence without imposing sanctions because he had received a departure sentence. The district court revoked Jesse's probation and ordered him to serve the underlying prison sentence, based on the two established probation violations.

Jesse timely appeals.

ANALYSIS THE DISTRICT COURT DID NOT ERR IN REVOKING JESSE'S PROBATION

Typically the procedure for revoking a defendant's probation requires two distinct inquiries by the district court: (1) a factual determination that the offender violated a condition of probation; and (2) a discretionary determination of the appropriate disposition given the established violation. State v. Horton, 308 Kan. 757, 760-61, 423 P.3d 548 (2018) (citing State v. Skolaut, 286 Kan. 219, 227-28, 182 P.3d 1231 [2008]).

Under the first step, the State must establish a probation violation by a preponderance of the evidence. State v. Inkelaar, 38 Kan.App.2d 312, 315, 164 P.3d 844 (2007). "A preponderance of the evidence is established when the evidence demonstrates a fact is more probably true than not true." 38 Kan.App.2d at 315. Appellate courts review a district court's factual findings for substantial competent evidence and then determine de novo whether those findings support the district court's legal conclusions. State v. Weber, 297 Kan. 805, 816, 304 P.3d 1262 (2013). Substantial competent evidence is legal and relevant evidence that a reasonable person could accept as adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). When reviewing for substantial competent evidence, appellate courts do not reweigh the evidence or assess the credibility of witnesses. State v. Combs, 280 Kan. 45, 50, 118 P.3d 1259 (2005).

Once a probation violation has been established, the appropriate disposition rests within the district court's sound discretion unless an intermediate sanction is statutorily required. State v. Tafolla, 315 Kan. 324, 328, 508 P.3d 351 (2022); see K.S.A. 2022 Supp. 22-3716(b) and (c) (requiring...