State v. Harley

• Decision Date: 13 May 2022
• Docket Number: 124,369
• Citation: 508 P.3d 1292 (Table)
• Parties: STATE of Kansas, Appellee, v. Paeden S. HARLEY, Appellant.
• Court: Kansas Court of Appeals

508 P.3d 1292 (Table)

STATE of Kansas, Appellee,

v.Paeden S. HARLEY, Appellant.

No. 124,369

Court of Appeals of Kansas.

Opinion filed May 13, 2022.

MEMORANDUM OPINION

Per Curiam:

Paeden S. Harley appeals the district court's revocation of his probation and imposition of his underlying prison sentence. We granted Harley's unopposed motion for summary disposition in lieu of briefing under Supreme Court Rule 7.041A (2022 Kan. S. Ct. R. at 48). After a review of the record, we find no error and affirm the district court's ruling.

Harley pled no contest to one count of criminal threat in violation of K.S.A. 2020 Supp. 21-5415(a)(1), a severity level 9 person felony, based on an incident that occurred on March 25, 2021. According to the State's factual basis for the charge at the plea hearing, Harley had been in a domestic violence incident with the victim, whom he later threatened to kill by slitting her throat. On May 27, 2021, the district court sentenced Harley to 12 months' probation with an underlying 12-month prison sentence, along with 12 months' postrelease supervision. The court also ordered, as a condition of probation, that Harley could have no direct or indirect contact with the victim.

Two months later, in July 2021, the State moved to revoke Harley's probation. The motion relied on an affidavit from Jason Pike, an adult services officer, in support. In the affidavit, Pike said Harley violated three conditions of his probation: (1) Condition No. 1, since he was arrested and charged on July 17, 2021, for theft of property of services, interference with a law enforcement officer, assault on a law enforcement officer, and a probation violation; (2) Condition No. 2, since he failed to report as directed to the Douglas County Community Corrections Office immediately upon his release from the Franklin County, Kansas, Jail on July 12, 2021; and (3) Condition No. 12, since he contacted the victim. As to the violation of Condition No. 12, Pike noted:

"That on July 13, 2021, the Affiant was contacted via telephone by ... [the] Victim Witness Coordinator. [The Victim Witness Coordinator] reported to the Affiant that the Defendant had contacted the Victim ....

"That on July 13, 2021, the Affiant received a telephone call from [the victim's roommate]. [The victim's roommate] informed the Affiant that she ... wanted to report information that the Defendant was making contact with the Victim. [The victim's roommate] reported to the Affiant that the Defendant showed up at the Victim's residence ... on July 13, 2021, at 09:00 AM and 11:00 A.M.

"That on July 29, 2021, the Affiant met with the Defendant at the Douglas County Jail to sign the Order of Assignment to Community Corrections. When the Affiant read Condition No. 12, ‘Have no direct or indirect contact with the Victim ... except as allowed through divorce proceedings, child support proceedings or as otherwise directed by a jurisdictional court, in which documentation allowing contact will be provided to the Adult Services Officer,’ the Defendant stated to the Affiant, ‘Yea, I'm not agreeing to that.’ The Defendant further reported to the Affiant that Judge Amy J. Hanley gave the Defendant permission to communicate with the Victim by telephone."

Harley stipulated to violating Condition No. 2 and Condition No. 12 as alleged in the affidavit. Based on these stipulations, the district court found Harley had violated his probation. The State recommended revoking Harley's probation out of safety concern for the victim, based mainly on Harley's statement to Pike that he had no intent to stay away from her. Pike testified on the State's behalf, explaining:

"I met with Mr. Harley ... to have the Order of Assignment signed. And during that jail visit Mr. Harley had reported to me that he would not be following through with the directive of not contacting the victim, and he was only initialing the condition, saying that basically I reviewed it with him. He also reported to me that Judge Hanley gave him permission to have contact with the victim."

Harley's attorney recommended a sanction rather than revoking probation, arguing Harley was confused about the court's no-contact order and that he had not injured the victim when he contacted her. Harley then addressed the court himself, explaining that he did not clearly understand that he could not contact the victim. He claimed the judge had given him permission to call the victim to contact his children at one point, and he believed that he could still do that. After considering the parties' arguments, the court revoked Harley's probation, relying on the public safety exception, K.S.A. 2020 Supp. 22-3716(c)(7), to bypass the intermediate sanctions.

On appeal, Harley argues the district court abused its discretion in revoking his probation and imposing his underlying prison sentence. We review a district court's revocation of an offender's probation for an abuse of discretion. State v. Coleman , 311 Kan. 332, 334, 460 P.3d 828 (2020). Judicial discretion is abused if the decision is (1) arbitrary, fanciful, or unreasonable; (2) based on a legal error; or (3) based on a factual error. State v. Gonzalez-Sandoval , 309 Kan. 113, 126-27, 431 P.3d 850 (2018). Unreasonable means that "no reasonable person would have taken the view adopted by the trial court." State v. Jones , 306 Kan. 948, Syl. ¶ 7, 398 P.3d 856 (2017). Harley, as the party asserting the district court abused its discretion, bears the burden of showing an abuse of discretion. See State v. Thomas , 307 Kan. 733, 739, 415 P.3d 430 (2018).

Under the probation revocation statute, a district court must first exhaust the required intermediate sanctions before revoking a defendant's probation, unless it finds that a statutory exception applies, allowing it to bypass the intermediate sanctions. K.S.A. 2020 Supp. 22-3716(c). One exception allows the district court to revoke probation without first imposing intermediate sanctions if "[t]he court finds and sets forth with particularity the reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the offender will not be served by such sanction." K.S.A. 2020 Supp. 22-3716(c)(7)(A). Harley does not assert that the district court failed to make particularized findings. Instead, he argues the district court abused its discretion because "revocation was unreasonable given the circumstances surrounding the allegations—that he showed up at the victim's house out of concern for his children, and without understanding the district court's no contact order."

Contrary to Harley's argument, the district court's decision to revoke his probation was not unreasonable and the record does not support his argument. First, nothing in the record suggests that Harley went to the victim's residence out of concern for his children. The only facts in the record related to the July 13, 2021 incident are the allegations in the affidavit. Harley stipulated to these allegations at the probation violation hearing. And the affidavit does not explain why Harley went to the victim's residence that day.

Second, Harley's claim that he did not understand the district court's no-contact order is unreasonable, based on the record. For example, he signed a plea agreement that set forth, as a probation condition, "You are to have no contact, direct or indirect, with [the victim], except as allowed through the divorce case." And at the plea hearing the next day, he confirmed with the court that he understood everything in the plea agreement.

Harley sought to raise the same argument he is raising here—that he did not understand the no-contact order—at the probation violation hearing:

"The State said that I had a clear understanding of not being able to contact the victim in this case. But I didn't, because if you guys go back into the court records you did give me permission to call [the victim's] phone number or [the victim's roommate's] number to make contact with my children at one point. ...

"... So, I was under the impression that that was still something I was allowed to do."

But at the plea hearing, the court prohibited Harley from contacting the victim after the State pointed out that Harley had been making phone calls from jail...