State v. Parkins
| Docket Number | 125,134,125,135 |
| Decision Date | 26 May 2023 |
| Parties | State of Kansas, Appellee, v. Clifford Allen Parkins, Appellant. |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
Appeal from Barton District Court; CAREY L. HIPP, judge. Opinion Affirmed in part and dismissed in part.
Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.
Natalie Chalmers, assistant solicitor general, and Kris W Kobach, attorney general, for appellee.
Before BRUNS, P.J., CLINE and HURST, JJ.
In this consolidated appeal Clifford Allen Parkins challenges the district court's decision revoking his probation and requiring him to serve his modified underlying prison sentences. On appeal, Parkins contends the State failed to present sufficient evidence to establish that he violated the terms of his probation. He also contends that the district court erred in ordering him to register under the Kansas Offender Registration Act (KORA) in his underlying criminal cases. Finally, he contends that the KORA violates the First Amendment to the United States Constitution. For the reasons stated in this opinion, we affirm in part and dismiss in part.
On July 9, 2019, Parkins pled guilty to one count of distribution of a controlled substance causing great bodily harm and one count of possession of marijuana. Before accepting his plea the district court informed Parkins that his distribution conviction would trigger a duty to register as an offender under KORA for 15 years. Parkins responded that he understood he would need to register under KORA if found guilty.
In pleading guilty to the charge of distribution of a controlled substance causing great bodily harm, Parkins admitted that he provided the victim with drugs that resulted in a condition requiring her hospitalization. The State proffered a supporting affidavit-to which Parkins did not object-stating that the victim bought what she thought were oxycodone pills from Parkins. Unfortunately, after taking one of the pills-which was later determined to contain fentanyl-the victim stopped breathing.
After accepting Parkins' plea and finding him guilty, the district court provided him with a written "NOTICE OF DUTY TO REGISTER." Although the presentence investigation (PSI) report did not show that Parkins had a duty to register, the State pointed out at the sentencing hearing that Parkins was required to register under K.S.A 2019 Supp. 22-4902(f)(2). The district court agreed and ordered Parkins to register as a drug offender. The district court then found substantial and compelling reasons to grant Parkins a dispositional departure and placed him on probation for 36 months with an underlying prison sentence of 44 months.
On September 18, 2020, Parkins pled guilty to one count of distribution of methamphetamine in a separate case. In exchange for Parkins' guilty plea, the State agreed not to oppose Parkins' motion for a dispositional departure to probation to be supervised by community corrections. The district court accepted his plea and found Parkins to be guilty. The PSI report showed that lifetime registration would be required under KORA. At sentencing, the district court again granted Parkins a dispositional departure and placed him on probation for 36 months with an underlying prison sentence of 123 months to run consecutive to the sentence in the 2019 case. The district court also ordered Parkins to lifetime registration under KORA.
On February 11, 2022, the State moved to revoke Parkins' probation in both cases. Specifically, the State alleged that Parkins did not report to his probation officer as required on two occasions. The State further alleged that Parkins had committed a new crime by not registering his change or termination of address and his change or termination of employment as required by KORA. The district court held an evidentiary hearing on April 11, 2022, at which Parkins appeared in person and by counsel.
At the probation revocation hearing, the State presented the testimony of four witnesses to support its motions to revoke. Although Parkins did not present any evidence or testimony, the district court gave him an opportunity to speak and respond to the State's allegations. Parkins admitted that he went to his grandfather's funeral in Wichita and then decided to stay there to help his parents with his grandfather's personal belongings.
Barton County Sheriff's Deputy Brandon Taylor testified at the hearing that he performed an annual check on Parkins at his registered residence on January 18, 2022. According to Deputy Taylor, he saw a door hanger on the handle of the front door of the residence that is used to inform registered offenders that they need to call law enforcement to verify that they are still living at their registered address. Deputy Taylor also testified that no one answered the door when he knocked and that he did not find anyone there when he "spot-checked" the residence several times in the following days. In addition, the deputy testified that it did not look like any vehicle traffic had been at the residence.
Deputy Taylor further testified that on January 28, 2022, he called Parkins' registered employer, Ivan Prieto of Twisted Metal Polishing, and was told that Parkins had not been working there since prior to the new year. Prieto informed the deputy that Parkins told him he was not going to continue working because he needed to turn himself in on outstanding warrants. Deputy Taylor additionally testified that Prieto told him that his in-laws owned the home that Parkins had given as his registered address, but that he had not lived in the house since prior to the new year.
The State also called Prieto, who testified that Parkins "used to" work for him. Although Prieto could not remember the date on which Parkins had last worked for him, he was sure it was prior to the new year. He testified that Parkins told him that he would not be working due to some personal issues. Prieto also testified that he would hire Parkins back in the future. Prieto indicated that he remembered law enforcement asking about Parkins, but he could not recall the specific details.
In addition, Prieto confirmed that the house that Parkins gave as his registered address was owned by his in-laws. He could not remember with certainty when Parkins stopped living there, but he thought it was around the time of Parkins' last day working for him. Prieto testified that he would not have mailed Parkins' last check to that address because he knew that "[Parkins] wasn't there anymore."
The State also called Natasha Beneke, who handles offender registration for the Barton County Sheriff's Office, to testify. She testified that offenders must register in person every three months and to report any changes of address or employment within three days. On February 9, 2022, Parkins registered his new address as the county jail after turning himself into custody on his outstanding warrants. She also testified that Parkins continued to claim to be employed by Twisted Metal Polishing.
Finally, Nathan Shattuck testified that he was assigned to supervise Parkins during his probation. According to Shattuck, Parkins was required to report four times a month. Shattuck testified that Parkins missed two appointments with him in October 2021. However, he did report on November 1, 2021. Shattuck indicated that although Parkins was scheduled to report on November 8, 2021, he did not do so. Parkins testified that at the November 1 appointment, he had given Parkins permission to attend his grandfather's funeral in Wichita over the weekend with the understanding that he would return to Great Bend on the following Monday. Shattuck did not hear from Parkins again until he left a message on February 9, 2022, saying that he was going to turn himself in on the outstanding arrest warrants.
After considering the evidence presented by the State, the statement given by Parkins, and the arguments of counsel, the district court revoked Parkins' probation and ordered him to serve his modified underlying sentences. In reaching this decision, the district court found that Parkins had violated the terms of his probation by not reporting to his probation officer and by committing a new crime. In particular, the district court determined that the State had proven by a preponderance of the evidence that Parkins had violated KORA by failing to report his change or termination of his registered address as well as his change or termination of his registered employment.
In deciding to require Parkins to serve his modified prison sentences the district court found that Parkins had already received multiple intermediate sanctions for prior probation violations. These sanctions included a 2-day quick dip in November 2019, a 60-day jail sanction in November 2020, and a 60-day internal sanction in August 2021. Ultimately, the district court ordered Parkins to serve his original 44-month sentence in the 2019 case and a consecutive modified 100-month sentence in the 2020 case.
Thereafter, Parkins filed a timely notice of appeal in each case and-because both cases involve the same issues-we consolidated them for the purposes of this appeal.
On appeal, Parkins challenges the sufficiency of the evidence supporting the district court's finding that he violated the terms of his probation. Although the initial decision to impose probation is an act of grace by the district court, a probationer may not have his or her probation revoked unless the State shows that the probationer has violated one of more of the conditions of probation by a preponderance of the evidence. State v. Hurley, 303 Kan. 575, 581, 363 P.3d 1095 (2016). "'A preponderance...
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