State v. Garrett

• Decision Date: 08 June 1984
• Docket Number: No. 56334,56334
• Citation: 235 Kan. 768,684 P.2d 413
• Parties: STATE of Kansas, Appellant, v. David D. GARRETT, Appellee.
• Court: Kansas Supreme Court

Page 413

684 P.2d 413

235 Kan. 768

STATE of Kansas, Appellant, v. David D. GARRETT, Appellee.

No. 56334.

Supreme Court of Kansas.

June 8, 1984.

Syllabus by the Court

1. K.S.A. 21-3810, which provides for the offense of aggravated escape from custody, is applicable to a convicted felon who, without permission and in violation of the rules, departs from a community corrections facility or fails to return to custody following temporary leave lawfully granted.

2. K.S.A. 21-3810 is not unconstitutional for vagueness.

Geary N. Gorup, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen. and Clark V. Owens, Dist. Atty., were with him on brief for appellant.

Michael Barbara of Sawhill, Underhill & Barbara, Haysville, argued the cause and was on brief for appellee.

PRAGER, Justice.

This is an appeal by the State from an order dismissing a complaint charging the defendant, David D. Garrett, with aggravated escape from custody (K.S.A. 21-3810). The facts in the case are not in dispute and were stipulated by the parties as follows:

(1) The defendant, David D. Garrett, was convicted of the offense of forgery (K.S.A. 21-3710[b], a felony, by plea of guilty on May 20, 1982, in Sedgwick County Case No. 82-CR-64. Defendant was placed upon a three-year suspended sentence to obey certain terms and conditions.

(2) Upon the defendant's failure to comply with the terms and conditions of his suspended sentence, the district court set aside the suspended sentence on March 1, 1983, and committed the defendant to serve a sentence of not less than one year nor more than ten years upon his forgery conviction in Case No. 82-CR-64.

(3) Pursuant to a timely filed motion to modify by the defendant, the district court on August 9, 1983, modified the defendant's sentence in Case No. 82-CR-64 and placed the defendant on probation for a period of three years to obey certain terms and conditions including that he reside at the Community Corrections Center, 1158 North Waco, Wichita, to obey all the rules and regulations of the center, and to obey all the requirements made by his case manager and counselor at the center.

(4) Pursuant to that order, the defendant, on August 9, 1983, entered the program and began residence at the Community Corrections Center, and on that date signed a seven-page Community Corrections Center agreement. The Community Corrections Center agreement provided in part as follows:

"The above-named client agrees to abide by all applicable laws, rules, ordinances and regulations of the Sedgwick County Community Corrections. Special attention is directed to the following statement:

"ANY RESIDENT RELEASED TO THE CUSTODY OF SEDGWICK COUNTY COMMUNITY CORRECTIONS AND WHO WILLFULLY FAILS TO RETURN TO THE DESIGNATED PLACE OF HOUSING AT THE TIME SPECIFIED IN THE PLAN MAY BE GUILTY OF ESCAPE FROM CUSTODY AND UPON CONVICTION BE SUBJECT TO THE PENALTY PROVIDED IN THE KANSAS STATUTES ANNOTATED."

"Resident Rules

"During placement at the Sedgwick County Community Corrections Center, residents shall obey all laws, applicable ordinances, housing regulations and the following standard corrections center rules:

"1. Residents shall adhere to all laws. Illegal behavior may be substantiated at a disciplinary hearing or a court of law if said conduct is classified as a misdemeanor or felony at the time of the incident.

....

"9. Residents are to be at their designated place of assignment (work, housing facility, or on furlough). Residents are responsible for notifying the housing staff of any proposed changes in their work schedule or furlough plan and must receive staff approval of such changes. Residents are to directly go to and from work by the approved method of transportation, route and time. Furthermore, residents who fail to return to the housing facility or are not at their place of assignment, may be guilty of Escape under the Kansas Statutes Annotated.

"10. Should any situation occur which prevents a resident from returning to the Center at the prescribed time, he/she shall immediately telephone the Center for instructions. Should approved work, study, training, or community service program terminate ahead of schedule, the resident shall immediately and without delay, return to the Residential Center.

....

"14. Residents may not leave Sedgwick County while placed in the facility without previous staff approval (job-seeking, employment or emergency only)."

"Possible Disciplinary Measures

"When residents are found to be in violation of facility regulations, it is the responsibility of staff to take appropriate action promptly and fairly in accordance with due process safeguards. The following disciplinary measures may be imposed by staff against residents of the corrections center, depending on the seriousness of the violation(s).

"1. Reprimand (usually verbal).

"2. Special conditions added to the case plan (alcohol treatment, drug treatment, marital counseling, etc.).

"3. Placement in any phase of the level system and/or reduction of any/all points.

"4. Partial restriction of furlough privileges.

"5. Complete restriction of furlough privileges.

"6. Extra duty in the facility.

"7. Referral to prosecuting authority for violation of the law.

"8. Removal from the program and placement in the Sedgwick County jail pending a court hearing.

"9. Imposition of several disciplinary measures at the same time (restriction, extra duty, special conditions, etc.).

"I have read (had read to me) the above and understand these are the disciplinary options available to staff at the Community Corrections Center which may be used if I am in violation of any of the conditions of my release. I further understand that should I violate the conditions of my release by fleeing to another state, I hereby agree to waive Extradition to be returned to Kansas."

(5) On September 16, 1982, the defendant checked out of the Community Corrections Center on a job-seeking furlough with a specified scheduled return time of 12:30 p.m. on that date. He did not return to the Community Corrections Center until 10:00 p.m. that same night. The defendant had gone to Pittsburg, Kansas, to visit his family instead of looking for a job, and he was brought back to the center by family members.

(6) The Community Corrections Center is a two-story, nonsecured, residential facility which houses felony offenders eligible for the community corrections program operating in Sedgwick County pursuant to K.S.A. 1983 Supp. 75-5290 et seq.

(7) The defendant used neither violence nor any threat of violence against any person in leaving the extended area of confinement (e.g., the City of Wichita) in violation of the rules and regulations of the Community Corrections Center.

On September 29, 1983, a complaint/information was filed in this case charging the defendant with escape from the Sedgwick County Community Corrections Center, while held in lawful custody upon the conviction of forgery under Case No. 82-CR-64. On September 28, 1983, defendant's counsel filed a motion to dismiss for the sole reason that there was "no factual basis to support the charge alleged." The motion to dismiss was submitted to the district court on the factual stipulation set forth above. Counsel for defendant filed a brief in support of the motion to dismiss in which the only point argued was that aggravated escape from custody (K.S.A. 21-3810) is not an appropriate charge to bring against an individual who, without permission, leaves a community corrections residential program. There was no constitutional issue raised in defendant's brief. The State filed a memorandum brief in opposition to defendant's motion to dismiss. In the State's brief, various statutes and court decisions were reviewed and the State urged the district court to rule that K.S.A. 21-3810 was applicable. No constitutional issue was discussed in the State's brief.

On November 18, 1983, the district court filed its order sustaining the defendant's motion to dismiss. In its order, the court found that, based upon the stipulation of facts, K.S.A. 21-3810(a) is unconstitutional as applied to this defendant in a community corrections setting. The constitutional issue had not been raised by either of the parties prior to the court's decision, and the court did not state in its order of dismissal why the statute was unconstitutional. On November 18, 1983, the State filed its notice of appeal. There is no transcript of any proceeding in the record on appeal.

The basic issue presented on the appeal is whether the district court erred in dismissing the complaint. There are two questions involved which, simply stated, are as follows:

(1) Whether K.S.A. 21-3810, which provides for the offense of aggravated escape from custody, is applicable to a convicted felon who, without permission and in violation of the rules, leaves a community corrections program, and

(2) Whether K.S.A. 21-3810(a) is unconstitutionally vague and ambiguous when applied to a convicted felon who departs from a community corrections residential program, without permission. In order to determine these issues, we believe it would be helpful at the outset to review the applicable statutory provisions and court decisions pertaining to the offenses of escape from custody and aggravated escape from custody.

In 1982, the Kansas legislature amended K.S.A. 21-3809 to clarify the crime of escape from custody. K.S.A.1983 Supp. 21-3809 provides as follows:

"21-3809. Escape from custody. (a ) Escape from custody is escaping while held in lawful custody on a charge or conviction of misdemeanor.

"(b) As used in this section and K.S.A. 21-3810 and 21-3811:

"(1) 'Custody' means arrest, detention in a facility for holding persons charged with or convicted of crimes, detention for extradition or deportation, detention in a hospital or other facility pursuant to court order or imposed as a specific condition of probation or parole or any other...