Failure to report to probation officer does not equal absconder

Jennifer C. Roth won in State v. Dooley, No. 111,554 (Kan. August 10, 2018), obtaining a new revocation hearing in a McPherson County offender registration prosecution. Mr. Dooley had been placed on probation and the district court subsequently found violations of the terms of that probation. When considering disposition, the district court held that Mr. Dooley was an "absconder" because he had failed to report to community corrections as ordered. The district court used this "absconder" finding to bypass intermediate sanctions and remanded MR. Dooley to prison to serve his underlying sentence. The KSC reversed and remanded for appropriate findings related to the district court's finding that Mr. Dooley had "absconded":

We are persuaded to adopt that concept with respect to the phrase "absconds from supervision" in K.S.A. 2013 Supp. 22-3716(c)(8). Relying on ordinary dictionary meanings, the State must show that the probation violator engaged in some course of action (or inaction) with the conscious intent to hide from or otherwise evade the legal process. Evading the legal process of the court includes the offender's conduct in intentionally avoiding probation supervision, for example, by intentionally avoiding detection by one's probation officer. In determining whether an offender has "abscond[ed] from supervision," district courts must consider whether the offender's 

"acts show the intent that inheres in the definitions of 'abscond'—not simply that the [offender] failed to attend one meeting with a probation officer or could not be located for a brief period of time, but that the [offender] sought to 'evade the legal process of a court by hiding within or secretly leaving the jurisdiction.'"

 Because the district court had not used the correct test, the KSC remanded for a determination of whether Mr. Dooley was an "absconder" or entitled to an intermediate sanction.