State v. Lyon

58 Kan.App.2d 474

471 P.3d 716

STATE of Kansas, Appellee,

v.Tyler Wayne LYON, Appellant.

No. 120,993

Court of Appeals of Kansas.

Opinion filed July 24, 2020.

James M. Latta, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Bruns, P.J., Green, J., and Timothy J. Chambers, District Judge, assigned.

Chambers, J.:

Tyler Wayne Lyon appeals the revocation of his probation and his sentence. The first issue is straightforward. Were Lyon's due process rights violated when the district court found he violated the terms of his probation by committing the crime of domestic battery when the State alleged he committed the crime of aggravated battery? The second issue enters us into the labyrinth of classification of prior crimes under the Kansas Sentencing Guidelines Act. Did the district court err by classifying his 2010 Kansas aggravated burglary conviction as a person felony when calculating his criminal history score? For the reasons set out below, we affirm the district court on both issues.

FACTUAL AND PROCEDURAL BACKGROUND

On September 9, 2017, Lyon got into an argument with his brother in the presence of Lyon's girlfriend, their two-year-old son, and a friend. The argument escalated when Lyon went into his bedroom and retrieved a handgun. Lyon pointed the gun at his brother who pushed the gun away. Lyon then began striking his brother with the gun. The gun discharged with the bullet passing through the brother's shoulder and striking the friend in the leg. Lyon was arrested and charged with multiple crimes as a result of the incident.

Pursuant to a plea agreement entered with the prosecution, Lyon pled guilty to two counts of aggravated battery and one count of criminal possession of a firearm. Lyon pled no contest to an additional charge of endangerment of a person. The district court accepted the pleas, and Lyon was found guilty of the four crimes.

A presentence investigation (PSI) report calculated Lyon's criminal history score as C, determined in part on a 2010 Kansas aggravated burglary conviction being classified as a person felony. Based upon his criminal history and crimes of conviction, Lyon's sentence was presumptive prison under the Kansas Sentencing Guidelines Act (KSGA).

At sentencing, the parties agreed that Lyon's criminal history score was C in accordance with the PSI report. Following the terms of the plea agreement of the parties, the district court granted Lyon a dispositional departure placing him on probation for a period of 36 months from an underlying prison sentence of 94 months. The district court noted that Lyon received "one heck of a plea agreement ... usually people who commit these kinds of acts ... end up in prison." Conditions of Lyon's probation included prohibitions against breaking any laws and from consuming alcohol.

Approximately four months following sentencing, a warrant was issued alleging Lyon violated the conditions of his probation by disobeying a law and consuming alcohol. Specifically, the warrant alleged Lyon "committed the offense of Aggravated Battery/Domestic Violence" and "consumed alcohol" as alleged in a police report. Lyon contested the allegations.

The district court held an evidentiary hearing on the alleged probation violations. Lyon's now ex-girlfriend, C.D., testified she and Lyon got into an argument because she suspected he was talking to another woman. C.D. testified she threatened Lyon with a belt and tried pushing him so she could leave the room. C.D. indicated some difficulty in remembering the events that took place, but she believed Lyon either grabbed or pushed her around the neck and chest area causing her to fall. C.D. lost consciousness and sustained a laceration to the back of her head. While C.D. did not see Lyon drink alcohol that day, she saw a beer can lying on the counter or table next to the couch and presumed it belonged to Lyon.

Lyon testified in his defense admitting he pushed C.D. Lyon testified in the course of the argument C.D. was following him around the house and shoving him. While in the kitchen, Lyon claimed he pushed C.D. because he thought she was going to hit him or grab a knife. According to Lyon, C.D. tripped and fell over a rug when he pushed her. Lyon also admitted drinking a beer that day. In closing argument, Lyon admitted to the consumption of alcohol but argued his actions against C.D. were justified as self-defense and the evidence failed to establish aggravated battery as alleged in the probation violation warrant.

The district court found Lyon had pushed C.D. to the ground and, as a result of the push, C.D. suffered head injuries. The judge noted the size discrepancies of the parties. C.D. is 5 feet, 2 inches tall and weighed about 135 pounds. Lyon is 6 feet 2 inches tall and weighed about 305 pounds. Utilizing his ability to judge the credibility of the witnesses, the judge determined Lyon's use of force was not justified as self-defense.

After reading the definition of domestic battery as set out in K.S.A. 2018 Supp. 21-5414(a), the trial judge found that Lyon had committed the offense of domestic battery under both subsection (a)(1) and subsection (a)(2) of the statute. As a result, the district court ruled Lyon had violated the terms of his probation by violating a law and consuming alcohol. The trial judge specifically found an aggravated battery had not been committed, but rather the misdemeanor offense of domestic battery had been committed.

The district court considered intermediate sanctions but determined they would be inappropriate considering the previously granted departure sentence and the commission of a new crime involving violence. Lyon's probation was revoked, and the underlying sentence ordered executed.

Lyon appeals.

REVOCATION OF PROBATION

Lyon first contends the district court erred in revoking his probation when it found that he violated the terms of his probation by committing the new crime of domestic battery. Lyon claims this finding violated his due process rights because the State failed to allege that he committed a domestic battery in the probation violation warrant.

A district court's decision to revoke probation involves two steps: (1) a factual determination that the probationer has violated a condition of probation; and (2) a discretionary determination as to whether the proved violation warrants revocation of probation. State v. Skolaut , 286 Kan. 219, 227-29, 182 P.3d 1231 (2008). 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). We review the district court's factual finding that a violation occurred for substantial competent evidence. Inkelaar , 38 Kan. App. 2d at 315-16, 164 P.3d 844. Once a probation violation has been established, the decision to revoke probation rests within the district court's discretion. State v. Hurley , 303 Kan. 575, 580, 363 P.3d 1095 (2016). When determining whether a district court complied with due process requirements in revoking a defendant's probation, we apply an unlimited standard of review. 303 Kan. at 580, 363 P.3d 1095.

When reviewing a due process claim, we first determine whether a protected liberty or property interest is involved. Village Villa v. Kansas Health Policy Authority , 296 Kan. 315, 331, 291 P.3d 1056 (2013). While the decision to impose probation is an act of grace, once a defendant is granted probation, "he or she acquires a conditional liberty interest which is subject to substantive and procedural due process limits on its revocation." Hurley , 303 Kan. at 581, 363 P.3d 1095. Since a protected interest is implicated, we must determine the nature and extent of the process that is due. Village Villa , 296 Kan. at 331, 291 P.3d 1056.

Due process is flexible in that not all situations calling for procedural safeguards call for the same kind of procedure. See In re Care & Treatment of Ellison , 305 Kan. 519, 526, 385 P.3d 15 (2016). A due process violation exists only if the complaining party shows that he or she was denied a specific procedural protection to which he or she is entitled. See In re K.E ., 294 Kan. 17, 22, 272 P.3d 28 (2012). The basic elements of procedural due process are notice and "the opportunity to be heard at a meaningful time and in a meaningful manner." Ellison , 305 Kan. at 526, 385 P.3d 15. "To satisfy due process, notice must be reasonably calculated, under all of the circumstances, to apprise the interested parties of the pendency of an action and to afford the parties an opportunity to present any objections." Johnson v. Brooks Plumbing, LLC , 281 Kan. 1212, 1215, 135 P.3d 1203 (2006).

The revocation of a defendant's probation is not part of a criminal prosecution and, therefore, the full panoply of rights in a criminal case is not applicable to a probation revocation proceeding. State v. Galaviz , 296 Kan. 168, 174, 291 P.3d 62 (2012). The United States Supreme Court in Morrissey v. Brewer , 408 U.S. 471, 488-89, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), established minimum due process rights for parolees and later extended those rights to probationers in Gagnon v. Scarpelli , 411 U.S. 778, 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). These due process rights include written notice of the claimed probation violations and disclosure of the evidence against the probationer. Hurley , 303 Kan. at 582, 363 P.3d 1095. Our Supreme Court has held that the statute governing probation revocations— K.S.A. 22-3716 —satisfies all constitutional requirements necessary in probation revocation proceedings.

State v. Rasler , 216 Kan. 292, 296, 532 P.2d 1077 (1975).

Under K.S.A. 2018 Supp. 22-3716(b)(1), Lyon's intensive supervision officer (ISO) was required to "submit in writing a report showing in what manner the defendant has violated the conditions" of his probation. In this case,...