State v. Ottinger
264 P.3d 1027
Kan. Ct. App.2011Background
- Ottinger pled no contest in 08CR3127 to forgery and identity fraud; underlying sentence 13 months, but probation for 18 months granted.
- Probation conditions required center-based program, no contact with his wife, and no alcohol or drugs.
- Ottinger entered the Center July 29, 2009; August 28, 2009, he left with a 3-hour pass to obtain a bicycle and later did not return.
- A positive urinalysis suggested drug use; Ottinger was granted leave for the bicycle but did not return, leading to a warrant and arrest on Sept. 29, 2009.
- He was charged with aggravated escape in 09CR2900; the State sought to exclude compulsion defense via a limine motion; Irons five conditions were applied.
- At a bench trial on stipulated facts (Jan. 14, 2010), Ottinger was found guilty of aggravated escape; probation was revoked and sentences were ordered to run consecutively.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Compulsion defense applicability to third-party threats | Ottinger argues Irons limits are incorrect; 21-3209 permits compulsion for threats to third parties. | State contends compulsion does not apply when threat is to a third party, citing Kelly. | Compulsion allowed for third-party threats in principle, but not proven here; limine affirmed. |
| Probation revocation standard | Ottinger argues factors outweigh violations and probation should not be revoked. | State asserts revocation within district court discretion for proven violations. | No abuse of discretion; violations (positive test, center noncompliance, contact with wife, felony) supported revocation. |
| Use of criminal history for sentencing (Apprendi issue) | Ottinger contends criminal history used to increase max penalty violates Apprendi. | State relies on Ivory to uphold use of criminal history for sentencing. | Court follows Ivory; no Apprendi error in using criminal history for sentencing. |
Key Cases Cited
- State v. Irons, 250 Kan. 302, 827 P.2d 722 (1992) (adopted Pichon five conditions for compulsion defense)
- State v. Pichon, 15 Kan.App.2d 527, 811 P.2d 517 (1991) (five conditions for compulsion defense)
- State v. Kelly, 21 Kan.App.2d 114, 896 P.2d 1101 (1995) (compulsion defense not available when threat to third party)
- State v. Dawson, 43 Kan.App.2d 800, 231 P.3d 582 (2010) (precedent on following Supreme Court without indication of departure)
- State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002) (Apprendi sentencing limitations in Kansas)
- State v. McCaslin, 291 Kan. 697, 245 P.3d 1030 (2011) (confirms Ivory not overruled)
- Swope v. Musser, 223 Kan. 133, 573 P.2d 587 (1977) (probation revocation requires non-arbitrary action)
- Trautloff, 289 Kan. 793, 217 P.3d 15 (2009) (plain language interpretation of statutes)
- Lovercamp, 43 Cal.App.3d 823, 118 Cal.Rptr. 110 (1974) (compulsion defense framework (Cal. appellate authority))