State v. Skolaut, No. 97,401.

• Citation: 182 P.3d 1231
• Decision Date: 16 May 2008
• Docket Number: No. 97,401.
• Parties: STATE of Kansas, Appellant, v. Kenneth R. SKOLAUT, Appellee.
• Court: Kansas Supreme Court

182 P.3d 1231

STATE of Kansas, Appellant, v. Kenneth R. SKOLAUT, Appellee.

No. 97,401.

Supreme Court of Kansas.

May 16, 2008.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Paul J. Morrison, attorney general, were with him on the brief for appellant.

Alice C. White, of Paul E. Wilson Defender Project, argued the cause and was on the briefs for appellee.

The opinion of the court was delivered by NUSS, J.:

The district court refused to consider, for any probation-related purpose, Kenneth Skolaut's conduct occurring after his probation term but during the pendency of probation violation proceedings under K.S.A. 22-3716. The State appealed the ruling on a question reserved which the Court of Appeals dismissed, apparently for lack of jurisdiction. We granted the State's petition for review to consider two issues. Those issues, and our accompanying holdings, are as follows:

1. Did the Court of Appeals err in dismissing the State's appeal? Yes.

2. For purposes of determining probation violations, may a district court consider a defendant's conduct that occurred after the probation term but during the pendency of probation violation proceedings under K.S.A. 22-3716? No.

Accordingly, the State's appeal on a question reserved is reinstated, and the appeal is sustained in part and denied in part.

FACTS

The facts, and resultant arguments, are best understood when presented in the following chronology:

January 27, 2005: Kenneth R. Skolaut was convicted of felony driving under the influence (DUI), possession of methamphetamine, possession of marijuana, and driving while suspended.

April 8, 2005: Skolaut was sentenced to an underlying term of 15 months in prison but granted 12 months' probation.

February/March 2006: Skolaut violated conditions of his probation. Specifically, he failed to report as directed, failed to report change of address and telephone number as directed, and failed to make payments as directed.

April 8, 2006: Skolaut's 12 months' probation was scheduled to terminate.

April 19, 2006: At the request of Lesia Hedgepeth, Skolaut's probation officer, the district court issued a probation violation warrant alleging Skolaut's violations that had occurred before the end of the probation term: February/March 2006.

May 9, 2006: End of the 30-day period after probation was scheduled to terminate during which time the district court was authorized to issue a probation violation warrant under K.S.A. 22-3716(a).

June 28, 2006: During a traffic stop, Skolaut was arrested on the probation violation warrant.

June 30, 2006: At the request of Hedgepeth, the district court issued a second probation violation warrant, alleging the June 28 events were additional violations. Specifically, Skolaut allegedly failed to provide proof of insurance, failed to yield on a left turn, and drove without possession of a license.

August 23, 2006: During Skolaut's probation violation hearing, he admitted the violations occurring during the initial probation term: February/March 2006. Accordingly, the State requested that the court revoke his probation and impose the underlying prison sentence. The hearing was continued for 1 week to allow the parties to research whether the June 28 events, although occurring after the initial probation term, could nevertheless also be considered by the district court.

August 31, 2006: The district court found that it had erred in issuing the second warrant because it was prohibited from considering the June 28 events due to their occurring after the initial term of probation. It therefore set aside the warrant:

"The reason the second warrant, in my opinion, is not valid is because it doesn't address an allegation that occurred during the initial term of probation. If the warrant had addressed an additional allegation that had occurred during the initial term of probation, that second warrant generally can be considered.... [B]ecause the second warrant addresses allegations that occurred post April 8th, 2006, it's not valid."

The court refused to consider the June 28 events either for determining probation condition violations or for dispositional purposes. After acknowledging Skolaut's admission of the violations for his February/March conduct, it decided to "reinstate your probation for a period of six months from today under the same terms and conditions."

The State filed a timely notice of appeal on a question reserved under K.S.A. 22-3602(b)(3). After the State's response to the Court of Appeals' order to show cause, the court dismissed the appeal.

ANALYSIS

Issue 1: The Court of Appeals erred in dismissing the appeal.

The State argues that when the Court of Appeals determined whether it had jurisdiction to hear the State's appeal, that court apparently misread our holding, and misapplied our test, in State v. Tremble, 279 Kan. 391, 109 P.3d 1188 (2005). Skolaut basically responds that the court apparently instead believed that the State's issue was adequately addressed by existing case law. As a result, there was no reason to decide the question reserved.

The precise reason for the Court of Appeals' dismissal of the appeal is unclear. The State's response to the order to show cause simply shows a hand-written "Appeal Dismissed" together with a date and signature of the Chief Judge. However, the earlier show cause order issued by that court provides some clues to the ultimate dismissal. That order states in relevant part:

"Based on the record on file in the office of the Clerk of the Appellate Court and the briefs of the parties, it does not appear this court has jurisdiction under K.S.A. 2006 Supp. 22-3602(b)(3). Jurisdiction over appeals by the prosecution on a question reserved are not entertained simply to demonstrate trial court errors which are adverse to the State or because a decision would be helpful precedent. See State v. Tremble, 279 Kan. 391, 393, 109 P.3d 1188 (2005). Instead, questions reserved by the prosecution must present issues of statewide interest important to the correct and uniform administration of criminal law. State v. Mountjoy, 257 Kan. 163, 167-68, 891 P.2d 376 (1995). The State's brief fails to allege or establish how the issue presented in this appeal poses a question of statewide importance." (Emphasis added.)

The State responded to this show cause order, stating in relevant part:

"4. As for this court's assertion that `[j]urisdiction over appeals by the prosecution on a question reserved are not entertained ... because a decision would be helpful precedent,' the State would respectfully submit that this court's interpretation of State v. Tremble, 279 Kan. 391, 109 P.3d 1188 (2005), is in error. The resolution of whether the question presented by the State's appeal would provide helpful precedent is an integral part of determining whether a court should entertain a question reserved.

....

"5. The State also respectfully disagrees with this court's findings that `[t]he State's brief fails to allege or establish how the issue presented poses a question of statewide importance.' First, the State's brief specifically concluded `The State respectfully requests this court resolve the question posed herein favorably to the State's position in that the same would aid in the correct and uniform administration of criminal law in future cases.' Second, the fact a matter of `statewide importance' is at play is also the undercurrent of the entire brief on appeal, in that no appellate decision addresses the questions posed, nor can district courts turn to the plain language of the controlling statutory provision for guidance.

"6. If jurisdiction is denied in this case, then the questions posed herein will go unanswered and future courts facing similar issues will be left to guess at what to do; which in no way would lead `to the correct and uniform administration of criminal law.'" (Emphasis added.)

Upon receipt of the State's response, the court dismissed the appeal.

We begin our analysis by examining K.S.A. 22-3602(b)(3), which governs questions reserved. It states: "Appeals to the court of appeals may be taken by the prosecution from cases before a district judge as a matter of right in the following cases, and no others: ... (3) upon a question reserved by the prosecution."

Our decision in Tremble, 279 Kan. at 393, 109 P.3d 1188, elaborates upon when an appeal on a question reserved by the prosecution may be taken:

"K.S.A. 2003 Supp. 22-3602(b)(3) provides that the prosecution can appeal upon a question reserved. Such an appeal is permitted to allow the prosecution to obtain review of a trial court's adverse ruling on a legal issue of statewide interest that is important to the correct and uniform administration of criminal justice....

"In State v. Woodling, 264 Kan. 684, 687, 957 P.2d 398 (1998), we held:

`"Questions reserved by the State in a criminal prosecution, under K.S.A. 22-3602(b) [Furse], will not be entertained on appeal merely to demonstrate whether error has been committed by the trial court.... Generally, this court has accepted appeals on questions reserved by the State where the appeals involve questions of statewide interest important to the correct and uniform administration of the criminal law and the interpretation of statutes." [Citations omitted.]

`"We have uniformly declined to entertain questions reserved in which the resolution of the question would not provide helpful precedent." [Citations omitted.]'" (Emphasis added.)

See, e.g., State v. Mountjoy, 257 Kan. 163, 168, 891 P.2d 376 (1995) ("We have uniformly declined to entertain questions reserved, the resolution of which would not provide helpful precedent."); State v. Leonard, 248 Kan. 427, 433, 807 P.2d 81 (1991) ("Resolution of this issue [on a question reserved] will not provide a helpful precedent; therefore, we do not entertain it").

After the Tremble court identified its...