State v. Carter, s. 51153
| Decision Date | 18 July 1980 |
| Docket Number | Nos. 51153,51154,s. 51153 |
| Citation | 614 P.2d 1007,5 Kan.App.2d 201 |
| Parties | STATE of Kansas, Appellee, v. Thomas CARTER, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. K.S.A. 22-3716 provides an exception to the admission of hearsay testimony, in probation hearings, by permitting the filing of written statements made under oath.
2. Inadmissible hearsay testimony alone will not establish a probation violation to support a revocation of probation.
3. Where the trial court, during a probation revocation proceeding, has relied solely upon hearsay testimony introduced by the prosecution, and the defendant and/or his witnesses present testimony from which it can reasonably be determined that violation of conditions of probation has occurred, the defendant has waived his hearsay objection to the State's evidence and a decision finding a violation of probation and ordering probation revocation will not be reversed.
4. The sentencing of a defendant which is determined to be within the statutory limits provided by law will not normally be disturbed upon appeal, absent a showing that the trial court abused its discretion.
Alan D. Herman of Jochems, Sargent & Blaes, Wichita, for appellant.
Beverly Dempsey, Asst. Dist. Atty., Robert T. Stephan, Atty. Gen., and Vern Miller, Dist. Atty., for appellee.
Before FOTH, C. J., and SPENCER and SWINEHART, JJ.
Defendant Thomas Carter appeals from an order revoking probation and imposing sentence for a burglary conviction in case No. 51,154, and from an order revoking the suspension of sentence on another burglary and a theft conviction in case No. 51,153.
The defendant raises five grounds for appeal: (1) the trial court committed prejudicial error by admitting hearsay evidence and by refusing to dismiss the revocation proceedings and to discharge defendant at the close of the State's evidence; (2) the trial court deprived defendant of his constitutional rights of due process and confrontation by admitting hearsay evidence; (3) the defendant did not waive objection to the trial court's refusal to dismiss the revocation proceedings by the presentation of evidence; (4) the trial court erred in finding a willful violation of conditions of probation and abused its discretion in revoking defendant's probation; and (5) the trial court abused its discretion in imposing the maximum sentence on Count I of case No. 51,154, in light of the State's recommendation and defendant's cooperation.
The defendant, Thomas Carter, was charged in case No. 51,153 with one count of burglary of a residence on August 17, 1978, with the intent to commit a theft, in violation of K.S.A. 21-3715, and with one count of theft for obtaining unauthorized control over stereo equipment, two television sets, two jars containing change, a parakeet and a parrot, in violation of K.S.A. 1979 Supp. 21-3701(a ). In case No. 51,154 the defendant was charged with one count of burglary for entering Dave Johnson Motors, Inc., on September 11, 1978, in violation of K.S.A. 21-3715, and one count of theft, in violation of K.S.A. 1979 Supp. 21-3701(a ), for taking an automobile from the premises.
At the time the defendant was charged in these cases, he was in a two-year probation imposed on January 27, 1977, for burglary and theft charges.
For purposes of the appeal, the parties entered into a stipulation which describes the proceedings in the case up to the original grant of probation as follows. As a result of plea negotiations between the district attorney's office and the defendant, the defendant agreed to inform the State of all information he possessed concerning criminal activity in Wichita prior to his arrest in case No. 51,154, as well as additional information he hoped to obtain in cooperation with the district attorney's office while he was out on bond. Among other things, the defendant also agreed to waive preliminary hearing and to plead guilty to the burglary charge in No. 51,154 and to both counts in case No. 51,153.
The defendant supplied the requested information about criminal activity. While equipped with transmitting devices, he contacted individuals engaged in criminal activity and obtained incriminating statements from them. A number of search warrants were executed, thousands of dollars of stolen property recovered, criminal charges brought against a number of individuals, and a major crime ring in the Wichita area broken as a direct result of the defendant's information and activities.
The State therefore granted defendant immunity from prosecution in connection with any criminal activity he might reveal to the district attorney which occurred prior to his arrest in case No. 51,154. It also dismissed the theft count in case No. 51,154 and agreed to recommend the minimum sentence on all charges to which the defendant pleaded guilty, that any sentences imposed run concurrently, and that the defendant be granted probation on any confinement portion of the sentence which might be rendered in connection with either of the cases if prosecution of others resulted from the information and cooperation of the defendant. If no prosecutions resulted, the State agreed to follow any recommendation made in the report from the Kansas Reception and Diagnostic Center.
Pursuant to these negotiations, the defendant pleaded guilty to both counts in case No. 51,153 and to Count I in case No. 51,154 on January 22, 1979, before the Honorable Nicholas Klein of the Sedgwick County District Court. At that time the State advised the court of the plea agreement between the parties and so apprised the court again on January 29, 1979, when the defendant appeared for sentencing. The State also informed the court of the considerable evidence of criminal activity obtained as a result of the defendant's cooperation with the local law enforcement authorities. The prosecution recommended the defendant receive the minimum sentences on all charges and that he be granted probation from the confinement portion of such sentences.
However, the trial judge sentenced the defendant to a maximum term of three to ten years on Count I of case No. 51,154, and suspended sentencing in case No. 51,153 for 120 days pending receipt of the report of KRDC. On April 9, 1979, sentence was suspended pursuant to K.S.A. 1979 Supp. 21-4603 on case No. 51,153 for a period of two years upon various terms and conditions, one being that the defendant be placed under the Sedgwick County Jail Work Release Program beginning April 13, 1979, for an indefinite period. The defendant was also granted probation from the confinement portion of the sentence imposed in case No. 51,154 for a period of two years upon various conditions, including participation in the work release program.
On May 7, 1979, James B. Hatfield, the defendant's probation officer, reported that defendant had violated rules numbered 3, 7, and 11 of the work release program. The rules provide:
"Failure to report for work or to return to the institution on schedule will be deemed as an escape from confinement and the individual will be subject to prosecution." Rule No. 7.
At the probation revocation hearing on May 16, 1979, the State called Larry Joe Barker, program officer for the Jail Corrections Department, who testified over the defendant's hearsay objections that the defendant had violated the above rules of the work release program. He violated rules 3 and 7 on April 30, 1979, by failing to report to work after leaving the jail. Barker had verified this violation with Cecil Schnipp who was the defendant's supervisor at Ultra Modern Pool and Patio where the defendant had been working. Barker also testified that the defendant violated rule No. 11 the next day because he returned to the jail at approximately 12:25 a.m., more than two hours after completing work for the day. Barker readily admitted that he had no personal knowledge of these violations, although he had received a phone call from the defendant's wife on April 30 informing him that the defendant was talking to Judge Klein, or attempting to talk to Judge Klein, about his case on that day. On Wednesday, May 2, the defendant again failed to report to work because his brother-in-law, Vernon Brooks, who provided transportation for the defendant, decided not to work that day. The defendant Carter, however, left the jail and did not return until approximately 8:35 p.m., several hours after his expected arrival. Therefore, he violated rules No. 3 and 11 on May 2. Barker stated that the defendant had been given a copy of the rules to read and signed a copy indicating he had read them.
The defendant moved to dismiss the proceedings on the grounds that the only evidence presented by the prosecution was hearsay and was not competent to meet the State's burden in a revocation hearing. The court denied the defendant's motion and the defendant therefore decided to offer evidence in his behalf.
The defendant, his wife, and his brother-in-law testified. Their evidence established that defendant's activities were basically the same as had been described by Barker, thereby confirming the rule violations that Barker had described by hearsay.
At the end of the hearing, and as embodied in a journal entry filed on May 25, 1979, the trial court found that the defendant had failed to comply with the terms and conditions of the suspended sentence which had been imposed in case No. 51,153, and therefore sentenced the defendant to not less than one nor more than ten years on both the burglary and theft charges. These sentences were to run concurrently with each other. The trial court...
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