Saturday, May 16, 2015

Absconding is more than just not reporting

Patrick H. Dunn won in State v. Huckey, No. 112,273 (Kan. App. April 24, 2015), obtaining a remand order in a Ellsworth County probation violation case. In particular, the COA expounded on the definition of "absconder" for purposes of an intermediate sanction statutes. The panel looked to other cases defining "absconder" for purposes of the fugitive disentitlement doctrine and concluded that "absconder" means something more than failure to report on probation:
The Campbell court ruled that the district court's finding that Campbell was a fugitive based upon a mere allegation in the State's motion was insufficient. The panel ruled that the district court erred on this point, but it ultimately affirmed based upon the legal insufficiency of Campbell's motion to modify sentence.

We find the reasoning of the Campbell panel sound. In this case, the only mention of Huckey being an absconder from supervision was by the State when counsel argued that caselaw suggested that if you failed to report for 2 months you are an absconder; if it is less than 2 months, you are not an absconder. We have found no reported cases that rule this way. 

On appeal, the State has abandoned that argument. Instead, the State contends that because the statute fails to define absconder, then it is left to the absolute discretion of the sentencing court to decide if a probationer is an absconder. In other words, if a probationer fails to report one time, the court, acting within its discretion, could validly rule such a probationer is an absconder, making the intermediate sanctions inapplicable when probation is revoked.

Such an interpretation of the statute runs counter to the elaborate set of intermediate sanctions created by the statute that must be imposed in cases of probation revocation before ordering the original sentence to be served. Why bother to create all of those sanctions if the legislature simply allowed the sentencing court to bypass all of the sanctions with a simple finding that this probationer is an absconder? The reasoning in Campbell is compelling. Absconding is more than just not reporting.
Because the state had not shown any evidence of absconding, the COA remanded for further proceedings.

[Update: the state filed a PR on May 22, 2015.]

[Further update: the KSC denied the state's PR and the mandate issued on August 12, 2015.]

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