State v. Hilton
| Decision Date | 08 November 2013 |
| Docket Number | Nos. 102,256,102,257.,s. 102,256 |
| Parties | STATE of Kansas, Appellee, v. Heather Page HILTON, Appellant. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Syllabus by the Court
If a defendant commits misconduct after the district court has announced that probation will be granted, the district court has the inherent authority to revoke that probation even if the probation term has not yet formally commenced.
Matthew J. Edge, of Kansas Appellate Defender Office, for appellant.
Kristafer R. Ailslieger, deputy solicitor general, Thomas J. Drees, county attorney, and Steve Six, attorney general, for appellee.
Before LEBEN, P.J., ATCHESON and SCHROEDER, JJ.
Heather Hilton was put on probation in two separate felony cases, and the district court followed the parties' agreement by making the two probations—each lasting 12 months—consecutive to one another. A month later, Hilton violated one of the conditions of her probation.
The State asked that probation be revoked in both cases and that Hilton be required to serve the prison sentences for both crimes. Hilton argued that since the probation terms were made consecutive to one another she was only serving the first probation at the time of the violation. As a result, she argued, the court could only revoke the probation for the first offense, meaning that she would only have to serve one of the two prison terms. The district court revoked probation in both cases and ordered her to serve both prison terms.
In this appeal, we have a single question to decide: If a district court has ordered two consecutive probation periods and the defendant violates the terms of probation during the first probation period, can the judge revoke both probations and order the defendant to serve both prison sentences? We conclude that the judge can revoke both probations in this case, and we therefore affirm the district court.
This case has an unusual procedural background, and we need to go through some of that to properly set the stage to decide the legal issue presented to us. The first of Hilton's two felony convictions at issue here came in 2006 in case No. 05CR264; she was convicted of criminal damage to property for sinking someone else's motorboat. She was placed on probation for 12 months with an underlying 10–month prison sentence that would be served if she didn't successfully complete probation. A key condition of probation was that she make restitution to the boat owner. When the 12 months of probation was about to end, the court extended it for another 24 months because she still owed $15,484 in restitution. A probation can be extended when the defendant has not paid the full amount of restitution ordered by the court. See K.S.A. 21–4611(c)(7).
While still serving that probation, Hilton committed a new felony—attempted reckless aggravated battery—for an incident involving the spanking of a child. In the new case, No. 07CR312, Hilton was granted a 12–month probation with an underlying prison sentence of 8 months that would be served if she didn't successfully complete the probation.
Hilton and the State reached a written plea agreement on the new charge, but the written agreement didn't say what would happen to the probation in the property-damage case. A joint hearing was held to determine the sentence to be imposed in the attempted-reckless-aggravated-battery case (the court had the option of either probation or prison) and whether to revoke her probation and send her to prison in the damage-to-property case. By law, since the new felony was committed while Hilton was on a felony probation, the district court was required to make the prison sentences in the two cases consecutive to one another under K.S.A. 21–4608(c). Concurrent sentences share the same clock, so only the longest sentence is served; the shorter ones tick away alongside the longest sentence. Consecutive sentences run separately and result in longer time in prison. See Wilkinson v. State, 40 Kan.App.2d 741, 741, 195 P.3d 278 (2008). In Hilton's situation, though, she might not have to serve the consecutive sentences if she received probation on the new felony, reinstatement of probation for the older felony, and successfully completed the probation terms.
The district court noted that Hilton, then 31 years old, had 22 prior offenses, 11 of them felonies. The court nonetheless determined that Hilton would get another chance at probation in both cases. The court recognized that the prison sentences must be consecutive to one another but initially indicated that the probation terms would be concurrent, with only the prison sentences run consecutively. But the defense attorney told the court that the parties had agreed for the probation terms to be consecutive, and the court accepted that:
The district court entered written orders in both cases, which were signed by the judge, the prosecutor, and the defense attorney. In the order on the 2005 felony, the court noted that its probation term would run consecutive to the probation on the new felony: “Probation 05CR264 consecutive to probation in 07CR312 (12 + 12 = 24 mos).” In the order on the new felony, the court made a similar note:
The next month, Hilton admitted to her probation officer that she had been drinking in a bar, which violated the terms of her probation. After a hearing, the district court revoked her probation in both cases and ordered that she serve the underlying, consecutive prison sentences. The district court rejected her argument that it had authority only to revoke the first of the two consecutive probation terms.
Hilton appealed to this court, but there were substantial delays in getting transcripts of court hearings prepared and in the attorneys for each side getting their briefs on file. By the time the case was ready to be heard in our court, Hilton had already served her prison sentence, so our court dismissed the case as moot. But the Kansas Supreme Court reversed that decision, concluding that there was an issue of public importance presented in this case that is capable of repetition, and it remanded the case to us for our consideration. State v. Hilton, 295 Kan. 845, 851–52, 286 P.3d 871 (2012).
Hilton contends that the district court could not revoke the probation in both cases because—given the consecutive nature of the probation terms—one of the probation periods had not yet begun. According to Hilton, there is no statutory authority to revoke a probation that has not yet commenced, so the district court could not revoke probation in one of the cases (the one in which the probation was to be served second in time).
The State contends that when probation terms are ordered to run consecutively, they actually are both served together initially. Once the first probation term ends, the State contends that the defendant is only serving probation in the remaining case.
What's at issue here is a question of law—was the judge's sentencing order revoking both probations a lawful one? We review that question independently, without any required deference to the district court. See State v. Ross, 295 Kan. 1126, 1130–31, 289 P.3d 76 (2012). We cite to the sentencing statutes that were in place in March 2009 when the district court revoked Hilton's probation in the two cases.
Before getting to the question we must decide, we note that one question—whether the district court has authority to order probation terms to be served consecutively—is not before us in this appeal. Hilton's attorney told the district court that both parties had agreed to make the probation terms consecutive. In addition, in her appellate brief, Hilton has never made the argument that the district court erred by running the probation terms consecutively. Instead, her sole issue on appeal was that the district court erred “by revoking probation in both cases ... because a court cannot revoke probation for a violation that occurs before the term of probation begins.” Hilton's appeal is premised on the fact that the probation terms were consecutive to one another.
Our statutes provide broad authority for the district court to place conditions on the grant of probation but little guidance about the specific question before us. K.S.A. 21–4603 provides that the district court may “release the defendant on probation subject to such conditions as the court may deem appropriate.” Revocation of probation is provided for under K.S.A. 22–3716. That statute provides slightly different language based upon whether the crime was committed before Kansas adopted sentencing guidelines in 1993—a warrant may be issued for the arrest of the defendant for a probation violation “ [a]t any time during probation, assignment to a community correctional services program, [or] suspension of sentence” for a pre-July 1, 1993, crime and “ at any time during which a defendant is serving a nonprison sanction ” for crimes committed after July 1, 1993. (Emphasis added.) K.S.A. 22–3716(a). The statute provides for procedures under which a warrant may be issued for the defendant's arrest for an apparent violation of...
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