State v. Van WinkleState v. Van Winkle
- Reporters:
- , ,
- Before:
- Lockett
The opinion of the court was delivered by
Lockett, J.:Defendant appeals the district court’s revocation of her probation and refusal to reduce her life sentence. The State questions whether a district court had jurisdiction to hear successive motions for revocation of probation and to modify a life sentence.
On April 16, 1992, Gloria Lynn Van Winkle was convicted of possession of cocaine. This conviction was a class A felony under
On July 31, 1992, prior to Van Winkle entering the Stout Street program, the State filed a motion to revoke Van Winkle’s probation because Van Winkle had failed a drug screen and failed to report to her court services officer as directed. At a hearing on August 12, 1992, to revoke her probation, Van Winkle stipulated to the alleged violations of her probation. Complicating matters at the August 12 hearing was the fact that, earlier that day, Van Winkle had been sentenced in municipal court to a term of 179 days on a conviction of misdemeanor theft. The district judge noted that any order of probation would be thwarted by Van Winkle’s theft sentence. Nevertheless, the district judge indicated that his objective was to see that Van Winkle enrolled in the Stout Street program and would consider reinstating Van Winkle’s probation at a later date, “depending on whether or not a resolution can be made with regard to the sentence imposed by the municipal court.” The district court revoked Van Winkle’s probation and committed her to the custody of the Secretary of Corrections to serve her sentence of life imprisonment.
Apparently, the municipal court matter was resolved because on August 13, 1992, defense counsel filed a motion pursuant to
Van Winkle entered the Stout Street program on December 7, 1992. On December 11, 1992, Van Winkle left the program without permission. Her whereabouts were unknown. On January 6, 1993, the State filed a motion for probation revocation and obtained a warrant for Van Winkle’s arrest. Van Winkle was eventually located, arrested, and detained in Colorado. Van Winkle waived extradition and was returned to Kansas.
On March 9, 1993, the district judge conducted a second probation revocation hearing. At that hearing, the prosecutor noted that a letter from the Colorado court services officer who had
Van Winkle testified that she left the program because she could not be with her children and because the program officials would not let her attend church. The district judge noted that Van Winkle had withdrawn from the Stout Street program without permission of the court, without modification of her probation, and without just cause. The district judge observed that he had placed Van Winkle on supervised probation twice before, only to have her rebel and reject the structured setting imposed. Prior to revoking Van Winkle’s probation, the judge stated: “[A]ll reasonable attempts to place the defendant on probation have at this time failed and the Court has no other choice but to return Miss Van Winkle to the secretary of corrections for the service of the [life] sentence previously imposed.”
On March 18, 1993, defense counsel filed another motion pursuant to
At the modification hearing, on June 22, 1993, the judge noted the absence of any long-term treatment program which could satisfactorily address Van Winkle’s drug addiction. The judge stated: “I’ve seen this report many times; I’ve gone over this case many times, and this Court, I think, can look at the record, and any
Grant of Probation
The State argues that, after a defendant has appealed a conviction and previously has been granted probation, a district court does not have jurisdiction to consider successive motions for sentence modification or to grant a second probation pursuant to
The State cites four cases which have discussed the propriety of successive motions for sentence modification:
State v. Smith,
254 Kan. 16, 864 P.2d 1208 (1993);
State v. Reed,
253 Kan. 154, 853 P.2d 50 (1993);
State v. Soft,
244 Kan. 517, 769 P.2d 675 (1989); and
State v, Hervey,
19 Kan. App. 2d 498, 873 P.2d 188 (1994). We note that all four cases discuss the propriety of successive motions for sentence modification. None of the cases cited
The argument of the issues is confused because neither party notes that the power to grant probation and to impose or modify a sentence are separate and distinct. Probation is defined by
Probation is separate and distinct from the sentence. Dubish, 236 Kan. at 851. A sentence is the judgment of the court which formally declares to the accused the legal consequences of his or her conviction or of the guilt to which he or she has confessed. State v. Woodbury, 133 Kan. 1, 298 Pac. 794 (1931). The final judgment in a criminal case is the sentence and, by placing the defendant on probation, the trial court does not affect the finality of the judgment. Dubish, 236 Kan. at 851.
Prior to 1969, the granting or termination of parole (now termed probation) by the district court was not reviewable by an appellate court. G.S. 1949, 62-2214. Subsequent to the adoption of the Kansas Criminal Code, the defendant had the right to appeal the revocation of probation.
The district court sentenced Van Winkle to life imprisonment and then granted her request for probation on July 10, 1992. That probation was revoked on August 12, 1992. On August 13, 1992, Van Winkle filed a motion to reinstate her probation. The judge reinstated her probation on November 25, 1992. Van Winkle’s two requests for probation were heard within the 120-day period
As to the State’s argument that the district judge did not have jurisdiction to grant a second probation to the defendant, we note that the State fails to cite any authority for its conclusion. The legislature has the power to limit the number of paroles or grants of probation by the district court. Under former statutes, G.S. 1949, 62-2201 and G.S. 1949, 62-2202, the legislature conferred upon the district courts the power to grant paroles for persons convicted of a violation of the criminal laws of this state and the power to revoke parole. The legislature permitted the district court to grant a second parole after the original grant of parole had been terminated by the sentencing court. It limited the power of the district court to grant additional paroles to a defendant by stating that no more than two paroles shall be granted to the same person under the same judgment of conviction. G.S. 1949, 62-2202. The statutory limitations for granting paroles by the district court was repealed by the legislature. There are no statutory limitations as to the number of grants of probation that can be granted to a defendant under a conviction.
Revocation of Probation
Implicit in our statutory provisions concerning probation is the understanding that the court need not grant probation, but if it does so, the probationer is entitled to retain his or her liberty as long as the probationer abides by the conditions on which probation is granted. A probationer may not have his or her probation revoked unless it appears that the probationer has failed to comply with the terms and conditions of probation. Swope v. Musser, 223 Kan. 133, Syl. ¶ 2, 573 P.2d 587 (1977).
Van Winkle argues the district court abused its discretion in revoking her probation. Specifically, Van Winkle contends that
Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. Baker, 255 Kan. 680, Syl. ¶ 9, 877 P.2d 946 (1994).
Van Winkle cites State v. Evans, 14 Kan. App. 2d 591, 796 P.2d 178 (1990), to support her argument that the district court’s failure to find that the Stout Street program requirements violated her right to religious freedom. At issue in Evans was a condition of probation imposed by the sentencing judge requiring church attendance at a specific church and the performance of 1,000 hours of maintenance work at the church. Evans argued that the conditions imposed violated his right to the free exercise of religion guaranteed by the United States Constitution and the Kansas Constitution. The Evans court observed that a sentencing judge has broad powers to determine conditions of probation. It acknowledged that certain conditions of probation may restrict constitutional rights or freedoms an ordinary citizen might enjoy. The Evans court noted that the Kansas Constitution contains a strong prohibition against religious coercion. Evans recognized, however, that restrictions of constitutional rights or freedoms as a condition of probation are permitted if such restrictions bear a reasonable relationship to the rehabilitative goals of probation, the protection of the public, and the nature of the offense. 14 Kan. App. 2d at 592. The Evans court found that the imposition of the religious requirements as a condition of probation unreasonably restricted Evans’ constitutional religious freedom. It reversed and remanded for resentencing before another judge. 14 Kan. App. 2d at 593.
“[T]he Court finds it is without a program at this time of sufficient structure to assist with her rehabilitation, that the only structure provided to the court at this time is that of placement with the secretary of corrections.
“The Court would find that all attempts- — all reasonable attempts to place the defendant on probation have at this time failed and the Court has no other choice but to return Miss Van Winkle to the Secretary of Corrections for the service of the sentence previously imposed.”
The rationale of Evans does not apply because the program was suggested by Van Winkle and the conditions for remaining in the program were approved by Van Winkle when she accepted probation. In addition, the conditions of probation Van Winkle claims violated her right to religious freedom were not specifically imposed by the judge. Under these circumstances, the sentencing judge was not required to make specific findings. The record reveals the court considered and rejected Van Winkle’s reasons for leaving the Stout Street program. The judge did not abuse his discretion in revoking Van Winkle’s probation.
Modification of a Life Sentence
Under the Kansas Criminal Code, separate penalty provisions were established for each criminal offense, and the classification of every crime was determined by the penalty authorized. The concept of indeterminate sentencing was applied to all persons convicted of certain classes of felonies. Discretion was vested in the sentencing judge to establish the minimum and maximum terms of the sentence, within the limits set by the statute. The terms of imprisonment authorized by the legislature were established in
In sentencing a person to an indeterminate term of imprisonment, the judge, having regard for the nature and circumstances of the crime and the history, character, and condition of the defendant, is to fix the lowest minimum term which, in the opinion of the court, is consistent with the public safety, the needs of the defendant, and the seriousness of the defendant’s crime.
Affirmed.