State v. Lumley

• Decision Date: 16 April 1999
• Docket Number: No. 78,447,78,447
• Parties: STATE of Kansas, Appellee, v. Roy A. LUMLEY, Appellant.
• Court: Kansas Supreme Court

Page 914

977 P.2d 914

267 Kan. 4

STATE of Kansas, Appellee, v. Roy A. LUMLEY, Appellant.

No. 78,447.

Supreme Court of Kansas.

April 16, 1999.

Syllabus by the Court

1. Probation from serving a sentence is an act of grace by the sentencing judge and, unless otherwise required by law, is granted as a privilege and not as a matter of right. The procedure to be followed when a judge acts upon a defendant's violation of a condition of probation is set out in K.S.A. 22-3716.

2. Implicit in our statutory provisions for probation is the understanding that, unless required by law, the court need not grant probation, but if it does so, the probationer is entitled to retain his or her liberty as long as he or she abides by the conditions on which probation is granted.

3. To sustain an order revoking probation on the ground that a probationer has committed a violation of the conditions of probation, it is not necessary that the commission of the violation be established by proof beyond a reasonable doubt. Rather, a preponderance of the evidence is sufficient.

4. Probation revocation hearings are not criminal trials, and there are significant differences as to a defendant's rights and the admission of evidence in a criminal trial and a revocation hearing.

5. For the offense a probationer was convicted of, there is no privilege against self-incrimination available to the probationer, and there is no valid claim of privilege against self-incrimination on the ground that information sought through a polygraph examination might be used in a subsequent probation revocation proceeding.

6. A condition of probation will not be held invalid unless it (1) has no reasonable relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.

7. Under certain circumstances, using the results of a defendant's polygraph examination as a condition of probation is valid.

Craig Durham, assistant appellate defender, argued the cause, and Randall L. Hodgkinson, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, were with him on the briefs for appellant.

Michelle M. Sehee, assistant district attorney, argued the cause, and Debra S. Peterson, assistant district attorney, Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were on the brief for appellee.

LOCKETT, J.:

Defendant appeals the district court's "resentencing" him to imprisonment for failing to pass a polygraph test. Defendant argues that although the district court has jurisdiction to order polygraph testing as a condition of probation, the court could not use the results of the polygraph test to revoke defendant's probation.

On April 4, 1996, Roy A. Lumley pled guilty to three counts of aggravated indecent liberties and one count of criminal sodomy of his minor daughters. At the June 11, 1996, sentencing, Lumley requested a dispositional departure of probation. To support his request for a departure, Lumley's attorney submitted the report of Comprehensive Community Care of Sedgwick County, which recommended that Lumley continue in a community-based sexual offender treatment program under close supervision of community corrections. Lumley's supervision during the treatment program included a requirement that he submit to polygraph examinations. The State did not oppose Lumley's requested departure.

The district judge imposed a sentence of 102 months' imprisonment, then concluded that the reports and evaluations submitted provided substantial and compelling reasons for granting the departure requested by Lumley. The judge placed Lumley on 60 months' probation. The district judge stated as a condition of probation:

"Mr. Lumley will submit to a polygraph examination not less often than every six months at his expense. He'll not have any contact with any child less than 16 years of age, period. He'll not have contact with his daughters until arrangements are made between his counselor and their counselor....

....

"Mr. Lumley will provide releases for any and all treatment he is receiving or has received in the past, any and all medical treatment that he has received in the past and will receive in the future."

On December 23, 1996, a warrant was issued for Lumley's arrest. The warrant was based on a sworn allegation that Lumley's answer to a polygraph examiner's question was untruthful regarding contact with a child less than 16 years of age.

At the January 28, 1997, hearing on the probation violation, Lumley's attorney moved to quash the arrest warrant as facially invalid and violative of Lumley's due process rights. Lumley's attorney asserted that the polygraph results were not admissible into evidence without a prior stipulation to admissibility, and that Lumley had not stipulated to the introduction of the polygraph examination results.

The judge responded:

"THE COURT: So if you're telling me he's not willing to have a polygraph [examination] be part of his probation--which is what I'm hearing you say--I'll say fine and there won't be any probation and we'll give him credit for time served and I'll send him to the Secretary [of Corrections].

"MR. LEHR: Umm, your Honor, I'm not saying that this court does not have the power to enter as a condition of probation a requirement that Mr. Lumley undergo a polygraph test to insure his compliance with the conditions of probation. However, I have been unable to find any case in the United States that allows for the introduction of that test at a probation violation hearing.

"THE COURT: Where it was a condition of probation?

"MR. LEHR: As a condition to be used as part of his therapy, not as a basis for additional evidence against him to be introduced to send him back to prison.

"THE COURT: Oh, I'll overrule that objection.

"MR. LEHR: That's where my objection comes in.

"THE COURT: Okay, I'll find that Mr. Lumley is not willing, was not willing to have a polygraph [examination] be part of his conditions of probation. The court was not made aware of that. That's a fraud on the court. Therefore, we'll go back to ground zero and we'll start over with sentencing again."

The judge then indicated that without the polygraph examinations and the admission of the results of the examination as a condition of probation, the probation program recommended by community corrections could not be maintained. The judge found that Lumley, by claiming he had not stipulated to the admission of the results of the polygraph examination, had perpetrated a fraud on the court. Based on the fraud, the judge "resentenced" Lumley to the prison term originally imposed and committed Lumley to the Secretary of Corrections.

Lumley filed a notice of appeal claiming that the district court lacked jurisdiction to resentence him. The Court of Appeals affirmed Lumley's sentencing in State v. Lumley, 25 Kan.App.2d 366, 963 P.2d 1238 (1998).

The Court of Appeals found that the district court's statement that it would "start over with sentencing again" if Lumley did not stipulate to the admission of the polygraph results was not controlling. It noted that "[t]he substance of the [judge's] action, rather than the label, controls our review." 25 Kan.App.2d at 369, 963 P.2d 1238. The Court of Appeals found that the judge's "resentencing" of Lumley was actually a revocation of his probation.

In reaching this determination, the Court of Appeals relied on Andrews v. State, 11 Kan.App.2d 322, 720 P.2d 227 (1986). In Andrews, the district court revoked the defendant's probation, set aside the defendant's original sentence, and then imposed a higher sentence based on the fact that probation had been granted based upon Andrews' misrepresentations of his criminal history to the court. The Court of Appeals held that the district court had no authority to set aside Andrews' original sentence and impose a new increased sentence. The Andrews court construed the district court's setting aside Andrews' sentence as a probation revocation. It observed that based upon fraudulent concealment of facts and circumstances existing at the time probation was granted, the defendant's probation could be summarily revoked. 11 Kan.App.2d at 323, 720 P.2d 227 (quoting Swope v. Musser, 223 Kan. 133, 573 P.2d 587 [1977] ).

The Court of Appeals noted that Lumley's case is factually similar to the Andrews case. The Court of Appeals asserted that the district court merely mischaracterized its action as a "resentencing," and the substance of the district court's action was actually a revocation of Lumley's probation. The Court of Appeals observed: " '[W]hen a defendant is granted probation in reliance upon misrepresentations made to the court by or on behalf of the defendant, the probation may be summarily revoked without evidence that the terms or conditions of probation have been violated.' " Lumley, 25 Kan.App.2d at 369, 963 P.2d 1238 (quoting Andrews, 11 Kan.App.2d at 323, 720 P.2d 227). It found that Lumley had misrepresented his intentions when he accepted the district court's grant of probation; therefore, his probation could be summarily revoked without further evidence of a violation.

The Court of Appeals focused upon Lumley's misrepresentation to the district judge and did not determine whether a probationer's failure of the polygraph test was sufficient for revoking his or her probation. This court granted Lumley's petition for review.

PROBATION

Probation from serving a sentence is an act of grace by the sentencing judge and, unless otherwise required by law, is granted as a privilege and not as a matter of right. State v. Yura, 250 Kan. 198, Syl. p 2, 825 P.2d...