State v. Van Winkle

• Decision Date: 27 January 1995
• Docket Number: No. 70514,70514
• Citation: 889 P.2d 749,256 Kan. 890
• Parties: STATE of Kansas, Appellee, v. Gloria L. VAN WINKLE, Appellant.
• Court: Kansas Supreme Court

Page 749

889 P.2d 749

256 Kan. 890

STATE of Kansas, Appellee, v. Gloria L. VAN WINKLE, Appellant.

No. 70514.

Supreme Court of Kansas.

Jan. 27, 1995.

Syllabus by the Court

1. Probation is defined by K.S.A.1991 Supp. 21-4602(3) as a procedure whereby a defendant, after being found guilty of a crime, is released by the court after imposition of sentence, without imprisonment. The power to grant probation is dependent upon statutory provisions. In the absence of a controlling statute, the trial court is without judicial power to place a convicted defendant on probation.

2. A sentence is the judgment of the court which formally declares to the accused the legal consequences of his or her conviction or of the guilt to which he or she has confessed. The final judgment in a criminal case is the sentence, and by placing the defendant on probation, the trial court does not affect the finality of the judgment. Probation is separate and distinct from the sentence.

3. The legislature has not limited the number of grants of probation by the district court to a defendant who has been convicted.

4. Implicit in our statutory provisions concerning probation is the understanding that the court need not grant probation, but if it does so, the probationer is entitled to retain his or her liberty as long as the probationer abides by the conditions on which probation is granted. A probationer may not have his or her probation revoked unless it appears that the probationer has failed to comply with the terms and conditions of probation.

5. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

6. The Kansas Constitution contains a strong prohibition against religious coercion. Any restrictions on a probationer's religious freedom must bear a reasonable relationship to the rehabilitative goals of probation, the protection of the public, and the nature of the offense. 7. K.S.A.1991 Supp. 22-3716(2) provides that if a violation of probation is established, the court may continue or revoke the probation and may require the defendant to serve the sentence imposed or any lesser sentence.

8. Under the Kansas Criminal Code, separate penalty provisions were established for each criminal offense, and the classification of every crime was determined by the penalty authorized.

9. The concept of indeterminate sentencing was applied to all persons convicted of certain classes of felonies. Discretion was vested in the sentencing judge to establish the minimum and maximum term of the sentence, within the limits set by the statute.

10. The term for a class A felony is imprisonment for life, which is not an indeterminate sentence. K.S.A. 21-4501(a). Because a class A felony has no maximum or minimum that can be set by the court, there is no less severe penalty within the statutory limit.

Rick Kittel, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellant.

Thomas P. Alongi, Asst. County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellee.

LOCKETT, Justice:

Defendant appeals the district court's revocation of her probation and refusal to reduce her life sentence. The State questions whether a district court had jurisdiction to hear successive motions for revocation of probation and to modify a life sentence.

On April 16, 1992, Gloria Lynn Van Winkle was convicted of possession of cocaine. This conviction was a class A felony under K.S.A.1991 Supp. 65-4127a because of Van Winkle's two prior convictions of possession of cocaine. On July 10, 1992, the district judge sentenced Van Winkle to life imprisonment but immediately granted supervised probation of five years. One of the conditions of Van Winkle's probation was that she submit herself to the Stout Street Foundation program in Denver, Colorado. Van Winkle had located the Stout Street Foundation and suggested to the judge that she be granted probation to enter the program.

On July 31, 1992, prior to Van Winkle entering the Stout Street program, the State filed a motion to revoke Van Winkle's probation because Van Winkle had failed a drug screen and failed to report to her court services officer as directed. At a hearing on August 12, 1992, to revoke her probation, Van Winkle stipulated to the alleged violations of her probation. Complicating matters at the August 12 hearing was the fact that, earlier that day, Van Winkle had been sentenced in municipal court to a term of 179 days on a conviction of misdemeanor theft. The district judge noted that any order of probation would be thwarted by Van Winkle's theft sentence. Nevertheless, the district judge indicated that his objective was to see that Van Winkle enrolled in the Stout Street program and would consider reinstating Van Winkle's probation at a later date, "depending on whether or not a resolution can be made with regard to the sentence imposed by the municipal court." The district court revoked Van Winkle's probation and committed her to the custody of the Secretary of Corrections to serve her sentence of life imprisonment.

Apparently, the municipal court matter was resolved because on August 13, 1992, defense counsel filed a motion pursuant to K.S.A.1991 Supp. 21-4603(4) for sentence modification and probation. At a hearing on November 25, 1992, the trial court reinstated probation and ordered Van Winkle to successfully complete the Stout Street program.

Van Winkle entered the Stout Street program on December 7, 1992. On December 11, 1992, Van Winkle left the program without permission. Her whereabouts were unknown. On January 6, 1993, the State filed a motion for probation revocation and obtained a warrant for Van Winkle's arrest. Van Winkle was eventually located, arrested, and detained in Colorado. Van Winkle waived extradition and was returned to Kansas.

On March 9, 1993, the district judge conducted a second probation revocation hearing. At that hearing, the prosecutor noted that a letter from the Colorado court services officer who had supervised Van Winkle stated that Van Winkle had called and informed him that she had left the Stout Street program. The letter stated that the Colorado court services officer had informed Van Winkle that she could not leave the program until she obtained permission from her Kansas court services supervisor. Van Winkle failed to contact the Kansas court services office.

Van Winkle testified that she left the program because she could not be with her children and because the program officials would not let her attend church. The district judge noted that Van Winkle had withdrawn from the Stout Street program without permission of the court, without modification of her probation, and without just cause. The district judge observed that he had placed Van Winkle on supervised probation twice before, only to have her rebel and reject the structured setting imposed. Prior to revoking Van Winkle's probation, the judge stated: "[A]ll reasonable attempts to place the defendant on probation have at this time failed and the Court has no other choice but to return Miss Van Winkle to the secretary of corrections for the service of the [life] sentence previously imposed."

On March 18, 1993, defense counsel filed another motion pursuant to K.S.A.1991 Supp. 21-4603(4)(a) for sentence modification and reinstatement of Van Winkle's probation. The State filed a motion to dismiss the modification request for lack of jurisdiction, alleging Van Winkle could not file successive 21-4603(4)(a) motions. On June 1, 1993, the State appealed the jurisdiction issue on a question reserved pursuant to K.S.A. 22-3602(b)(3). After being sentenced, Van Winkle appealed her conviction. On June 21, 1993, this court dismissed the State's appeal because Van Winkle's appeal was still pending. This court affirmed Van Winkle's conviction on December 10, 1993. State v. Van Winkle, 254 Kan. 214, 864 P.2d 729 (1993), cert. denied, --- U.S. ----, 114 S.Ct. 2168, 128 L.Ed.2d 890 (1994).

At the modification hearing on June 22, 1993, the judge noted the absence of any long-term treatment program which could satisfactorily address Van Winkle's drug addiction. The judge stated: "I've seen this report many times; I've gone over this case many times, and this Court, I think, can look at the record, and any court can look at the record, and see that every opportunity was given to Miss Van Winkle." The judge denied Van Winkle's motion to reinstate probation with regret and ordered that the defendant serve her life sentence. Van Winkle appealed the district court's denial of her second motion for sentence modification and probation.

Grant of Probation

The State argues that, after a defendant has appealed a conviction and previously has been granted probation, a district court does not have jurisdiction to consider successive motions for sentence modification or to grant a second probation pursuant to K.S.A.1991 Supp. 21-4603(4)(a). The State asserts that allowing a defendant one grant of sentence modification and one grant of probation protects the courts from repeated motions, insures that the responsibilities of the parole board are not usurped by courts retaining jurisdiction indefinitely, avoids circular appeals in the appellate courts and the district courts under 21-4603(4)(a) and (b), and averts abuse of the modification remedy.

K.S.A.1991 Supp. 21-4603(4)(a) and (b), which applied at the time of the offense, state in part that except when an appeal is taken and determined adversely to the defendant as provided in subsection (4)(b), at any time within 120 days after a...