State v. Gonzalez

• Citation: 457 P.3d 938
• Decision Date: 27 December 2019
• Docket Number: No. 120,179,120,179
• Parties: STATE of Kansas, Appellee, v. Rodrigo Francisco GONZALEZ, Appellant.
• Court: Court of Appeals of Kansas

457 P.3d 938

STATE of Kansas, Appellee,

v.Rodrigo Francisco GONZALEZ, Appellant.

No. 120,179

Court of Appeals of Kansas.

Opinion filed December 27, 2019.

Hope Faflick Reynolds and Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Powell, P.J., Pierron and Atcheson, JJ.

Atcheson, J.:

Constitutional due process protections preclude district courts from revoking the probation of convicted felons who have become mentally incompetent and ordering they serve their underlying sentences of imprisonment. The deprivation of liberty inflicted on those probationers is sufficiently grave that they must be able to understand and meaningfully participate in the revocation proceedings. The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires nothing less.

The Sedgwick County District Court may have given Rodrigo Gonzalez considerably less when it revoked his probation and sent him to prison despite legitimate concerns he may not have been competent during the revocation hearing. The district court refused to order a competency evaluation for Gonzalez because the statutory processes for those evaluations do not explicitly apply to probation revocation proceedings. But the absence of a statutory device cannot negate a fundamental constitutional right. The district court, therefore, erred in revoking Gonzalez' probation without determining he was mentally competent. The error, however, would be harmless if Gonzalez were competent then. We, therefore, remand the case for further proceedings, including either a retrospective or present competency evaluation.

FACTUAL AND PROCEDURAL HISTORY

We outline some background facts and procedural history to put this appeal in context. The State charged Gonzalez with felony battery of a law enforcement officer in April 2017 because he refused to remove his shoes while he was being booked into the Sedgwick County jail and then elbowed a corrections officer attempting to move him to a "safety cell" until he complied. The record indicates Gonzalez was 37 years old and had numerous convictions for misdemeanors and traffic offenses in Dodge City, Arkansas City, and Wichita over the course of his adult life. He also had a felony conviction for battery of a law enforcement officer.

Early in the case, the lawyer appointed to represent Gonzalez requested an evaluation to determine if he was mentally competent to stand trial. As provided in K.S.A. 22-3202, the district court ordered an evaluation and duly received a report from the mental health professional who examined Gonzalez. Following a hearing in June 2017, the district court entered an order finding Gonzalez to be competent. Neither the report nor a transcript of that hearing is part of the record on appeal.

The State and Gonzalez' lawyer reached an agreement calling for Gonzalez to plead guilty with a sentencing recommendation to the district court for a dispositional departure to probation. The written plea agreement acknowledged Gonzalez' history of mental illness and a related, though unidentified, seizure disorder as factors that contributed to and mitigated his wrongful conduct in the jail. The agreement also recognized the availability of appropriate health care in the community as a ground for the recommended sentence.

At a hearing in January 2018, the district court accepted Gonzalez' guilty plea. The district court later sentenced Gonzalez to 52 months in prison and, consistent with the parties' agreement, granted the motion for a dispositional departure to probation for 36 months.

In late July, the district court issued a warrant for Gonzalez because he had tested positive for alcohol several times, violating the terms of his probation. Gonzalez was taken into custody on the warrant, and the district court appointed a lawyer to represent him at a probation revocation hearing.

At the hearing about a month later, the lawyer informed the district court that Gonzalez had refused to meet with her in the jail several days earlier. The lawyer indicated she was having difficulty communicating with Gonzalez just before the hearing. The district court asked Gonzalez directly if he understood what was going on. He responded:

"This is the first time I have been on this case. I don't know what you are trying to tell me. I am just hearing you, but I am not paying attention about it, sir. That's all. I don't know.

"If I have to challenge it, I will challenge it. This is the first time I have ever done this."

Gonzalez' response may be fairly characterized at the very least as diffuse and perhaps as disordered. It was not, however, patently irrational or illustrative of a complete break with reality. The district court took a brief recess so Gonzalez and his lawyer could confer.

When the hearing reconvened, the district court established that the problem was not a language barrier. Gonzalez' lawyer explained that Gonzalez did not seem to appreciate what was going on. And, as a result, the lawyer questioned whether Gonzalez was mentally competent. She told the district court that were this the beginning of a criminal case rather than a probation revocation hearing, she would likely ask for a competency evaluation.

The district court suggested that Gonzalez had to be mentally competent to go forward with the hearing. His lawyer agreed. The prosecutor objected and submitted that no statutory authority permitted a stay for a competency hearing after a defendant had been adjudged guilty. The district court postponed the revocation hearing for several days to allow the lawyers to look into how the matter should be handled. The district court held a short hearing five days later and simply set the probation revocation for an evidentiary hearing the following week. The lawyers did not bring up Gonzalez' competency, and the district court did not address it.

At the start of the evidentiary hearing, Gonzalez' lawyer again raised concerns about his mental competency and pointed out that he had not been evaluated. The district court responded that it had been "informed" there were no procedures for competency evaluations after a defendant's conviction. So the district court concluded "unless that has changed, the matter [of Gonzalez' competency] will remain unresolved."

The State then presented three witnesses and two exhibits to prove the alleged probation violations. Gonzalez' lawyer cross-examined those witnesses but offered no additional evidence. Gonzalez did not testify. Based on the evidence, the district court found that Gonzalez had consumed alcohol multiple times in violation of the conditions of probation. In considering what disposition to make, the district court mentioned both Gonzalez' rather lengthy list of criminal convictions and his mental health issues. On balance, the district court concluded Gonzalez was not amenable to continued probation and ordered that he serve his 52-month prison sentence. Gonzalez has appealed that ruling.

LEGAL ANALYSIS

For his only issue on appeal, Gonzalez asserts he had a constitutionally protected due process right to be mentally competent at his probation revocation hearing. We agree. In turn, Gonzalez says the appropriate remedy requires the revocation order be set aside and he be given a new hearing. As we explain, that may not be the best tailored remedy. But, with some qualification, it provides an acceptable alternative.

At the outset, we put to rest the State's argument on appeal that Gonzalez didn't preserve his constitutional claim in the district court and should not be permitted to raise it now. Gonzalez' lawyer twice questioned Gonzalez' mental competence and requested relief from the district court. The record in the district court lent support to the lawyer's concern—the circumstances of the underlying crime were suggestive of some degree of mental decompensation and the explicit terms of the plea agreement acknowledged Gonzalez' chronic mental health issues.

Although the lawyer did not cite any particular legal source—constitutional or otherwise—for Gonzalez' right to be sufficiently mentally engaged to participate meaningfully in the hearing, she did assert that right. The district court acknowledged the issue and recognized a potential problem without an apparent solution. The lawyer's failure to mention the words "constitutional" or "due process" in her discussion with the district court does not amount to a waiver or forfeiture of Gonzalez' Fourteenth Amendment rights. See Boykin v. Alabama , 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969) (waiver of constitutional right must be intelligently and understandingly made and will not be inferred); State v. Bunyard , 307 Kan. 463, 470, 410 P.3d 902 (2018) (court will not presume defendant's acquiescence in loss of fundamental right). We, therefore, may consider the issue.

The Right Considered

The essential principle embodied in the Due Process Clause is this: The government may not deprive a person of a property right or a liberty interest without affording that person the opportunity to be heard in a meaningful way and at a meaningful time to avert a wrongful deprivation of that right or interest. Mathews v. Eldridge , 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) ("The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ "); Mullane v. Central Hanover Bank & Trust Co. , 339 U.S. 306, 313, 70 S. Ct. 652, 94 L. Ed. 865 (1950) (The Due Process Clause "at a minimum" requires that "deprivation of life, liberty, or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case."); Taylor v. Kansas Dept. of Health & Environment , 49 Kan. App. 2d 233, Syl. ¶ 4, 305 P.3d 729 (2013). Constitutional due process is an especially elastic concept...