State v. Lloyd
| Decision Date | 17 June 2016 |
| Docket Number | No. 114,389,114,389 |
| Citation | 52 Kan.App.2d 780,375 P.3d 1013 |
| Parties | State of Kansas, Appellee, v. Todd Lloyd, Appellant. |
| Court | Kansas Court of Appeals |
Sam Shirer, of Kansas Appellate Defender Office, for appellant.
Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Bruns, P.J., Powell and Gardner, JJ.
Todd Lloyd appeals the revocation of his probation, contending the district court erred in relying upon a probable cause finding made at his preliminary hearing on a new charge of kidnapping to find by a preponderance of the evidence that Lloyd had violated the conditions of his probation. The district court then revoked his probation and ordered Lloyd to serve his underlying sentence. Because we agree with Lloyd that the standard for binding someone over for trial—probable cause the defendant committed the act(s) for which he or she was charged—is a lesser standard than that required to find someone in violation of the terms and conditions of probation—by a preponderance of the evidence—we find the district court erred by relying on the wrong standard to find him in violation of his probation. Accordingly, we vacate the district court's order and remand for further proceedings.
On February 1, 2013, Lloyd pled no contest to aggravated battery and misdemeanor theft. Despite having an A criminal history score, the district court granted Lloyd's motion for a downward dispositional departure to probation and sentenced him to 24 months' probation with a 32–month underlying prison sentence. Less than a year later, in October 2013 Lloyd stipulated to a number of probation violations; the district court imposed a 60–day jail sanction and extended Lloyd's probation for 24 months. In December 2013 Lloyd again stipulated to a probation violation; the district court imposed another 60–day jail sanction and extended Lloyd's probation for an additional 24 months.
In April 2014, Lloyd was involved in a standoff with police that resulted in his arrest and being charged with kidnapping. After this incident, the State filed a motion to revoke Lloyd's probation. The amended motion included 14 alleged probation violations. Before the hearing on the State's motion to revoke probation, a preliminary hearing was held on the April 2014 kidnapping charge, and Lloyd was bound over for trial and arraigned.
At the subsequent probation revocation hearing, the State moved to amend its motion to revoke to include just one alleged probation violation: that Lloyd had been bound over on a charge of kidnapping. The district court granted this motion. Lloyd's defense attorney stated:
“Because of the new case pending, he will stipulate that he was found in violation or bound over for preliminary hearing, and that the standard at the preliminary hearing is higher than it is at a probation violation, so the Court can find that he is in violation of his probation based on the difference in the standards.”
When asked by the district court, Lloyd himself stipulated only to being bound over for arraignment in the kidnapping case. He did not stipulate to violating the terms and conditions of his probation or to his guilt in the kidnapping case. Based on the stipulation of being bound over in the kidnapping case, the district court found Lloyd violated the conditions of his probation and imposed Lloyd's underlying sentence of 32 months' imprisonment.
Lloyd timely appeals.
On appeal, Lloyd contends that the trial court erred in revoking his probation based solely on the probable cause finding made in the kidnapping case. Lloyd argues the State had the burden to prove a violation of the terms and conditions of probation by a preponderance of the evidence and failed to do so.
Revocation of probation by the district court is reviewed for an abuse of discretion. State v. Gumfory , 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). A district court abuses its discretion when its decision “(1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact.” State v. Waller , 299 Kan. 707, 722, 328 P.3d 1111 (2014).
A district court has no “discretion in a probation revocation proceeding until the evidence establishes a probation condition violation.” State v. Garcia , 31 Kan.App.2d 338, 341, 64 P.3d 465 (2003). The State has the burden of establishing probation violations. K.S.A. 2015 Supp. 22–3716(b)(2). “To sustain an order revoking probation on the ground that a probationer has committed a violation of the conditions of probation, commission of the violation must be established by a preponderance of the evidence.” Gumfory , 281 Kan. at 1170, 135 P.3d 1191. “A preponderance of the evidence is established when the evidence demonstrates a fact is more probably true than not true.” State v. Inkelaar , 38 Kan.App.2d 312, 315, 164 P.3d 844 (2007), rev. denied 286 Kan. 1183 (2008). Conviction for the act which allegedly violated the conditions of probation is not required. 38 Kan.App.2d at 315, 164 P.3d 844.
Here, the district court relied upon the probable cause finding in Lloyd's kidnapping case to conclude that the State had satisfied its duty to establish by a preponderance of the evidence that Lloyd had violated the terms and conditions of his probation by committing kidnapping. As we see it, the central question in this case is whether the probable cause standard used to bind over a defendant for trial amounts to a higher burden of proof than the preponderance of the evidence standard; if so, then the district court was at liberty to make the finding it did because the State had more than met its burden of proof.
It is well established that in every felony case—except for a grand jury indictment—a defendant is entitled to a preliminary hearing, and a district court must find “probable cause to believe a felony has been committed” before a defendant may be bound over for trial. K.S.A. 2015 Supp....
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