423 P.3d 469
Kan.2018Background
- Dooley pleaded nolo contendere to failure-to-register, received a dispositional departure to 36 months probation (underlying 120-month sentence suspended) with intensive supervision.
- Multiple probation modifications and sanctions occurred in 2012–2013 (including 2- and 5-day jail sanctions and a 30-day county jail sanction); Dooley admitted multiple drug-use violations in 2013.
- State filed a second motion to revoke (Dec. 17, 2013) alleging several admissions of illegal drug use, failures to report, failure to enter halfway house (withdrawn), and that Dooley had "apparently absconded"; bench warrant executed Jan. 14, 2014; Dooley later turned himself in.
- At the revocation hearing Dooley admitted seven violations (including failing to report whereabouts); he also testified he missed reporting because he was "scared" after being denied Oxford House admission and later surrendered.
- The district court revoked probation and ordered Dooley to serve the original sentence; the journal entry listed "defendant absconded" but did not check the statutory box or state particularized findings for bypassing intermediate sanctions.
- Kansas Supreme Court affirmed violation findings but reversed the revocation order and remanded for clarification whether the court invoked K.S.A. 2013 Supp. 22-3716(c)(8) (absconding/new crime) or (c)(9) (public safety/offender welfare) and for proper findings/evidence of absconding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do 2013 amendments to K.S.A. 22-3716 govern disposition here? | State (late) argued pre-July-1-2013 violation (June 6) allowed pre-amendment discretion to revoke. | Dooley argued amendments limit court to graduated sanctions unless exception applies. | Court: 2013 scheme applies; State's late-preserved argument waived and unavailing. |
| May court bypass intermediate sanctions under (c)(8) for "absconds from supervision"? | State: Yes, absconding permits bypass; Court of Appeals relied on Dooley's stipulation and journal entry. | Dooley: Stipulation insufficient; State must prove absconding by preponderance. | Court: Bypass permitted only if trial court finds absconding based on evidence showing intent to evade; record here inconclusive—remand required. |
| Did Dooley's stipulation/admissions at hearing satisfy the State's burden to prove absconding? | State: Yes—transcript + journal entry show Dooley admitted absconding. | Dooley: Admission to being "apparently absconded" does not meet legal standard of intent to evade. | Court: No—stipulation alone not sufficient; correct legal test (intent to hide/evade) was not applied; remand for factfinding. |
| Could the court invoke (c)(9) (public safety/offender welfare) without particularized findings? | State: Court comments about seriousness support (c)(9). | Dooley: (c)(9) requires written particularized reasons; not met. | Court: Implicit/general statements insufficient; statute requires particularized findings—(c)(9) cannot support bypass here. |
Key Cases Cited
- State v. Skolaut, 286 Kan. 219 (interpretation of statute is question of law)
- State v. Graham, 272 Kan. 2 (pre-2013 broad discretion to revoke probation)
- State v. McGill, 51 Kan. App. 2d 92 (date-of-violation controls applicability of intermediate-sanction provisions)
- State v. Raiburn, 289 Kan. 319 (State bears burden to allege/prove absconding in fugitive-disentitlement context)
- State v. Robbins, 345 Or. 28 (definition of "abscond" requires conduct with intent to hide or evade legal process)