State v. Hinnenkamp

• Decision Date: 05 July 2019
• Docket Number: No. 119,125,119,125
• Citation: 446 P.3d 1103
• Parties: STATE of Kansas, Appellee, v. Teresa Gayle HINNENKAMP, Appellant.
• Court: Kansas Court of Appeals

446 P.3d 1103

STATE of Kansas, Appellee,

v.Teresa Gayle HINNENKAMP, Appellant.

No. 119,125

Court of Appeals of Kansas.

Opinion filed July 5, 2019.

Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Leben, P.J., Malone and Gardner, JJ.

Malone, J.:

Teresa Gayle Hinnenkamp appeals the district court's order that she submit to random drug and alcohol testing as a condition of her probation for her conviction of aggravated escape from custody. She claims that K.S.A. 2018 Supp. 21-6607(c)(6), which requires district courts to impose random drug and alcohol testing as a condition of probation, violates the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights. For the reasons stated in this opinion, we reject Hinnenkamp's claims and affirm the district court's judgment.

On October 26, 2017, pursuant to a plea agreement, Hinnenkamp pled guilty to one count of aggravated escape from custody. She had failed to return to a work release facility where she had been assigned as the result of her conviction in another case. The presentence investigation report showed that Hinnenkamp had a lengthy criminal history including three convictions of driving under the influence and a conviction of unlawful possession of drug paraphernalia. She was on felony bond when she committed the new crime. On December 8, 2017, the district court sentenced her to 18 months' imprisonment but granted probation for 24 months to be supervised by community corrections.

As a condition of probation, the judge ordered Hinnenkamp to "not possess, use or consume alcohol, illegal drugs or prescription drugs without a prescription." He also ordered her to "submit to random breath, blood or urine testing, as directed by [her] probation officer, and in any event, no less than once every 30 days." Hinnenkamp objected to the probation condition and briefly argued that she should not be subjected to random drug testing by her probation officer, but she did not expressly identify any constitutional grounds to support her claim. The district court overruled the objection but clarified that if Hinnenkamp did not test positive during her first year of probation, later testing would "be at probation's discretion." Hinnenkamp timely appealed her sentence.

This appeal centers on the mandatory conditions of probation in K.S.A. 2018 Supp. 21-6607(c), which states, in part:

"In addition to any other conditions of probation ... the court shall order the defendant to comply with each of the following conditions:

....

"(6) be subject to random, but reasonable, tests for drug and alcohol consumption as ordered by a court services officer or community correctional services officer."

Hinnenkamp argues that K.S.A. 2018 Supp. 21-6607(c)(6) violates her rights under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights because it subjects her to searches unsupported by reasonable suspicion. In response, the State argues that Hinnenkamp's argument is (1) improperly raised for the first time on appeal; (2) not ripe, so this court lacks jurisdiction to consider it; and (3) so inadequately briefed that Hinnenkamp has waived it. As for the merits of Hinnenkamp's argument, the State contends that K.S.A. 2018 Supp. 21-6607(c)(6) is constitutional, both on its face and as applied to Hinnenkamp. We will begin by addressing the State's reasons why we should not reach the merits of this appeal.

Preservation

To begin with, the State asserts that Hinnenkamp's constitutional claim is improperly raised for the first time on appeal. Although Hinnenkamp briefly objected to the probation condition for drug testing at her sentencing hearing, she did not refer to either the Kansas or federal Constitution to support her claim. We agree with the State that Hinnenkamp is asserting her constitutional claim for the first time on appeal.

Generally, constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. State v. Daniel , 307 Kan. 428, 430, 410 P.3d 877 (2018). But there are several exceptions to this general rule, including the following: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the judgment of the district court may be upheld on appeal despite its reliance on the wrong ground or having assigned a wrong reason for its decision. State v. Phillips , 299 Kan. 479, 493, 325 P.3d 1095 (2014).

Hinnenkamp asserts that this court should apply the first two exceptions to allow her to assert her constitutional claim for the first time on appeal. In response, the State argues that although the constitutionality of a statute may be a question of law, the constitutionality of a search requires factual findings about the circumstances of the search, and the district court has made no such factual findings in Hinnenkamp's case.

The State is correct. Whether Hinnenkamp can bring her constitutional claim for the first time on appeal depends on whether she is bringing a facial challenge to the constitutionality of the statute in question or an as-applied challenge. This is an important distinction because although "classifying a lawsuit as facial or as-applied ... does not speak at all to the substantive rule of law necessary to establish a constitutional violation," it does "affect[ ] the extent to which the invalidity of the challenged law must be demonstrated and the corresponding ‘breadth of the remedy.’ " Bucklew v. Precythe , 587 U.S. ––––, 139 S. Ct. 1112, 1127, 203 L. Ed. 2d 521 (2019).

A facial challenge is "an attack on a statute itself as opposed to a particular application" of that law. Los Angeles v. Patel , 576 U.S. ––––, 135 S. Ct. 2443, 2449, 192 L. Ed. 2d 435 (2015). In comparison, as its name suggests, an as-applied challenge contests the application of a statute to a particular set of circumstances, so resolving an as-applied challenge "necessarily requires findings of fact." See State v. Farmer , No. 98,997, 2008 WL 5401338, at *4 (Kan. App. 2008) (unpublished opinion); see also Sibron v. New York , 392 U.S. 40, 59-62, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968) ("The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case.").

Hinnenkamp has not expressly articulated whether she brings her constitutional claim as a facial challenge to the statute or an as-applied challenge. But some arguments in her brief lead us to conclude that she is asserting a facial challenge to the constitutionality of the statute. For instance, in setting forth the standard of review, Hinnenkamp asserts that this court "presumes the constitutionality of a statute" and resolves all doubts in favor of its validity. She acknowledges that courts " ‘must interpret a statute’ " in a manner that renders it constitutional if there is any reasonable construction that will maintain the Legislature's apparent intent. In her prayer for relief, she specifically asks us to "find K.S.A. 201[8] Supp. 21-6607(c)(6) unconstitutional."

To the extent that Hinnenkamp means to bring an as-applied challenge to K.S.A. 2018 Supp. 21-6607(c)(6), requiring findings of fact by the district court, we agree with the State that her constitutional claim is not properly preserved for appeal. But her facial challenge to the constitutionality of K.S.A. 2018 Supp. 21-6607(c)(6) arises on admitted facts not dependent on the circumstances of any search she may have experienced. And resolution of the issue is finally determinative of this case. Because a facial constitutional challenge fits within the first exception to the general rule that we do not consider issues for the first time on appeal, we will consider Hinnenkamp's facial challenge to K.S.A. 2018 Supp. 21-6607(c)(6).

Ripeness

Next, the State asserts that this issue is not ripe for decision, so this court lacks jurisdiction to consider it. Hinnenkamp filed no reply brief and has not addressed ripeness. The State first points out that the district court ordered random drug and alcohol testing at least every 30 days, but only during the first year of Hinnenkamp's probation which she has already completed. The State asserts "there is no indication that this condition was ever applied to [Hinnenkamp]." But the State's argument misconstrues the district court's probation order. The district court ordered Hinnenkamp to submit to random drug testing at least once every 30 days during the first year of her probation. If Hinnenkamp did not test positive during her first year of probation, later testing would be at the probation officer's discretion. So although Hinnenkamp may no longer need to submit to drug testing at least every 30 days, she is still subject to random testing at her probation officer's discretion as required by K.S.A. 2018 Supp. 21-6607(c)(6).

The State also contends that this appeal is not properly before us because there are "other avenues through which random testing could have been proper," including (1) the probable conditions of probation imposed upon Hinnenkamp in another case not before this court, (2) the supposition that she "also may have been subject" to random testing because of her signing a probation agreement, and (3) the assertion that she may have been subject to drug testing "through the development of reasonable suspicion or even probable cause to request testing." But the State's argument is speculative and the record before us contains no evidence that any of these "other avenues" occurred. And our Supreme Court recently rejected a...