State v. Volle

• Decision Date: 23 December 2016
• Docket Number: No. 115,354,115,354
• Citation: 386 P.3d 930 (Table)
• Parties: State of Kansas, Appellee, v. Christopher Bryon Volle, Appellant.
• Court: Kansas Court of Appeals

386 P.3d 930 (Table)

State of Kansas, Appellee,

v.Christopher Bryon Volle, Appellant.

No. 115,354

Court of Appeals of Kansas.

Opinion filed December 23, 2016

Debra J. Wilson, of Capital Appeals and Conflicts Office, for appellant.

Klint Spiller, legal intern, Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Powell, P.J., Pierron and Hill, JJ.

MEMORANDUM OPINION

Powell, J.:

Christopher Bryon Volle appeals the district court's revocation of his probation and imposition of his underlying sentence. Volle was placed on probation after having pled no contest to two counts of aggravated battery, which were the result of a disturbance involving his wife. Several months later, after threatening his now ex-wife, Volle was arrested and the State sought to revoke his probation. After a hearing, the district court revoked Volle's probation and imposed the underlying prison sentences, in part on the grounds that Volle's military training made him a public safety threat. While we disagree with the district court that under the facts presented Volle's military training made him a public safety threat, because there were other grounds supporting the revocation of Volle's probation, the district court did not abuse its discretion and, therefore, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2015, Volle pled no contest to two counts of aggravated battery against his wife, Stephanie Volle. In exchange for Volle's plea, the State agreed to dismiss five additional counts and recommend probation. The district court sentenced Volle to consecutive sentences of 36 months and 32 months respectively, for a total of 68 months' imprisonment. After taking into account Volle's military service and other factors, the district court placed him on probation for 36 months.

In December 2015, Volle telephoned Stephanie, now his ex-wife, and during the ensuing argument yelled at Stephanie and threatened to kill her and her family members. Stephanie, concerned for her safety, called the police. That same day, Volle met with a cousin in Atchison County, Kansas. Volle showed his cousin a knife and asked her about certain people. Volle's cousin was concerned that Volle might hurt someone, but she did not contact law enforcement. Volle was later found sitting in his car and was arrested on a warrant for the new charges filed in Shawnee County resulting from his threats to Stephanie. After Volle's arrest, an Atchison County Sheriff's Deputy contacted and met with Volle's cousin, who told the deputy that Volle had threatened to hurt a man and that Volle had trash bags, plastic wrap, gloves, duct tape, zip ties, and a large machete-type knife in his car. Deputies found many of these items in Volle's car.

The State moved to revoke Volle's probation on the basis that Volle had failed to remain a law abiding citizen, failed to refrain from having violent contact with Stephanie, and left Shawnee County without prior approval. After an evidentiary hearing at which the State presented evidence of Volle's probation violations, the district court found Volle had violated the terms of his probation. The district court then heard arguments from the State and Volle concerning future disposition. The State urged the district court to revoke Volle's probation and impose the underlying prison sentences, specifically because Volle had committed a new crime and imposing an intermediate sanction would jeopardize public safety based on the violent nature of Volle's offense and the items found in his car.

Volle offered his military service and his struggles with posttraumatic stress disorder

(PTSD) as mitigating factors. In support, Volle presented two witnesses who testified about PTSD in general and Volle's experience with a program designed to help veterans with PTSD. Stephanie said that she supported Volle getting help; that she did not know if he would get the help he needed in prison; and that when Volle was receiving treatment, going to meetings, and taking his medications, he did very well. Volle's probation officer recommended that Volle receive a 3–day quick dip, with time served, and be ordered to complete treatment. Volle also introduced his PTSD service dog to the court.

The district court began by recognizing Volle's military service, stating that it was grateful for all that Volle had done for his country. But the district court also told Volle: "I have to look at all of the evidence and I will. Because I know that part of that evidence is that, before you went to Iraq, you were trained by experts on how to kill people, that was part of your training." Based on this finding and noting that (1) several potentially dangerous and suspicious items had been found in Volle's car, (2) Volle had threatened to kill someone, (3) Volle had stopped taking his medications, (4) Volle had stopped going to meetings, and (5) it appeared Volle's service dog was not with him on the night he was arrested, the district court found that public safety would not be served by imposing an intermediate sanction. The district court also found that Volle had committed a new crime while on probation. After making these findings, the district court revoked Volle's probation and imposed the underlying prison sentences.

Volle timely appeals.

DID THE DISTRICT COURT ABUSE ITS DISCRETION BY REVOKING VOLLE'S PROBATION ?

Volle claims the district court abused its discretion by imposing his underlying sentences instead of an intermediate sanction. Specifically, he claims the district court made a legal error by referencing Volle's military service and experience, which typically is considered a mitigating factor, when finding that public safety would be jeopardized by imposing an intermediate sanction. Volle contends that because of this error, the revocation of his probation and imposition of the underlying prison sentences was an abuse of the district court's discretion.

Probation 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.’ [Citations omitted.]" State v. Gary , 282 Kan. 232, 237, 144 P.3d 634 (2006). Once the State has proven that the offender committed a probation violation, "revocation is in the sound discretion of the district court." State v. Walker , 260 Kan. 803, 808, 926 P.2d 218 (1996). A court abuses its discretion if (1) no reasonable person would have taken the view adopted by the court; (2) the action was based on an error of law; or (3) the action was based on an error of fact. State v. Mosher , 299 Kan. 1, 3, 319 P.3d 1253 (2014). The offender bears the burden of proving an abuse of discretion. State v. Stafford , 296 Kan. 25, 45, 290 P.3d 562 (2012).

K.S.A. 2015 Supp. 22–3716(c) provides that before ordering an offender to serve his or her underlying prison sentence, the district court should generally impose an intermediate sanction. The district court, however, may revoke an offender's probation without imposing intermediate sanctions if it "finds and sets forth with particularity the reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the offender will not be served by such sanction." K.S.A. 2015 Supp. 22–3716(c)(9). Intermediate sanctions are also unnecessary if the offender committed a new felony, misdemeanor, or absconded from supervision while on probation. K.S.A. 2015 Supp. 22–3716(c)(8) ; see State v. Brown , 51 Kan. App. 2d 876, 885, 357 P.3d 296 (2015).

Citing cases involving sentencing issues from other jurisdictions, Volle claims that military service is generally regarded as a mitigating factor. See Ploof v. State , 75 A.3d 840, 855 (Del. 2013) (counsel reasonably concluded defendant's military service mitigating evidence); Farmer v. State , 772 N.E.2d 1025, 1027 (Ind. App. 2002) (defendant's military service mitigating factor), abrogated on other grounds by Bethea v. State , 983 N.E.2d 1134 (Ind. 2013). He also points out that the United States Supreme Court found that defense counsel's failure to introduce the defendant's military service as mitigating evidence in a death penalty case was sufficiently deficient, in part, to overturn a death sentence. See Porter v. McCollum , 558 U.S. 30, 43–44, 130 S. Ct. 447, 175 L.Ed. 2d 398 (2009) ; see also Jackson v. Dugger , 931 F.2d 712, 717 (11th Cir. 1991) ("We believe that Jackson's military service is in and of itself a significant mitigating circumstance."). Volle also notes that under Kansas law PTSD connected to military service is included in a nonexclusive list of mitigating factors that a district court may consider when deciding whether to impose a departure sentence. See K.S.A. 2015 Supp. 21–6815(c)(1)(F)....