State v. Tafolla ( 2021 )


Menu:
  •                            NOT DESIGNATED FOR PUBLICATION
    No. 122,331
    IN THE COURT OF APPEALS OF THE STATE OF KANSAS
    STATE OF KANSAS,
    Appellee,
    v.
    JEREMIAH J. TAFOLLA,
    Appellant.
    MEMORANDUM OPINION
    Appeal from Sedgwick District Court; ERIC WILLIAMS, judge. Opinion filed June 11, 2021.
    Affirmed.
    Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.
    Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
    attorney general, for appellee.
    Before POWELL, P.J., MALONE and GARDNER, JJ.
    POWELL, J.: Jeremiah J. Tafolla appeals the district court's revocation of his
    probation and imposition of his underlying prison sentence. He claims the district court
    lacked the authority to revoke his probation because it had not previously imposed the
    required intermediate sanctions. We disagree because Tafolla was given a dispositional
    departure to probation at sentencing, meaning he was not entitled to any intermediate
    sanctions prior to having his probation revoked. Thus, we affirm.
    1
    FACTUAL AND PROCEDURAL BACKGROUND
    The State charged Tafolla with one count of violating the Kansas Offender
    Registration Act (KORA), K.S.A. 22-4901 et seq., by failing to register as required on
    February 1, 2019, a severity level 5 person felony.
    Pursuant to a plea agreement, Tafolla pled guilty as charged in exchange for a
    joint sentencing recommendation that the district court impose the high number in the
    applicable sentencing guidelines gridbox but grant him a dispositional departure to
    probation. The joint recommendation for a dispositional departure was based on the age
    of Tafolla's prior person felony convictions, the role mental health played in his KORA
    violation, his willingness to comply with KORA going forward, and his agreement to
    obtain drug and alcohol and mental health evaluations and follow their recommendations.
    At Tafolla's September 17, 2019 sentencing, the district court found his criminal
    history score to be A and followed the parties' recommendations by sentencing Tafolla to
    136 months' imprisonment. Consistent with the plea agreement, the district court also
    granted Tafolla a downward dispositional departure to probation for 36 months.
    Just one week after being sentenced, Tafolla violated his probation by submitting a
    urine sample that tested positive for "Meth/Amphetamines," as well as cocaine and THC.
    On October 23, 2019, Tafolla admitted to the probation violation, waived his rights to
    counsel and an evidentiary hearing, and agreed to serve a two-day intermediate jail
    sanction, which was approved by the district court.
    Just over a month later, on November 27, 2019, the State sought to revoke
    Tafolla's probation by alleging in a warrant that Tafolla submitted a urine sample that
    tested positive for amphetamines and methamphetamines on November 14, 2019.
    2
    At the probation violation hearing held December 12, 2019, Tafolla, represented
    by appointed counsel, again waived his right to an evidentiary hearing and admitted to
    the violations. The State requested Tafolla's probation be revoked and he be ordered to
    serve his underlying prison sentence, asserting Tafolla was no longer amenable to
    probation due to his criminal history, his receipt of a downward dispositional departure,
    and the very short time between his sentencing and his two probation violations. Tafolla's
    counsel acknowledged that Tafolla's probation was the result of a dispositional departure
    but asserted that Tafolla was struggling with substance abuse and requested continued
    probation. Tafolla personally acknowledged his failure to put his substance abuse behind
    him, and he requested inpatient treatment so he could work on treating his addiction.
    The district court explained that Tafolla's criminal history was A and that he only
    received probation because of a dispositional departure. The district court noted that one
    of the bases upon which it had granted that departure was Tafolla's "willingness to
    engage in mental health treatment and to undergo a drug and alcohol evaluation and
    follow all recommendations." The district judge commented Tafolla knew "how the
    system worked and what was expected of [him]." As for Tafolla's substance abuse
    problem, the district judge commented Tafolla was "set up to succeed. But [he has not]
    done what [he was] supposed to do in the interim." The district court ultimately revoked
    Tafolla's probation and ordered him to serve his 136-month prison sentence.
    Tafolla timely appeals.
    ANALYSIS
    While acknowledging he never asked the district court to impose an intermediate
    sanction, for the first time on appeal Tafolla argues that K.S.A. 2018 Supp. 22-3716(c)
    required the district court to impose intermediate sanctions before revoking his probation.
    He further claims the district court wrongly failed to invoke one of the statutorily
    3
    authorized exceptions to the intermediate sanctions requirement before doing so. The
    State counters that as Tafolla was granted probation because of a dispositional departure,
    under K.S.A. 2018 Supp. 22-3713(c)(9)(B), Tafolla was not entitled to any intermediate
    sanctions prior to having his probation revoked.
    When only the propriety of the sanction imposed by the district court is at issue
    after a defendant has violated the terms and conditions of probation, we review the
    district court's decision under an abuse of discretion standard. State v. Coleman, 
    311 Kan. 332
    , 334, 
    460 P.3d 828
     (2020). A district court abuses its discretion if it bases its decision
    on legal or factual errors or if no reasonable person would agree with its decision. State v.
    Ballou, 
    310 Kan. 591
    , 615, 
    448 P.3d 479
     (2019). Tafolla bears the burden of showing
    that the district court abused its discretion. See State v. Thomas, 
    307 Kan. 733
    , 739, 
    415 P.3d 430
     (2018). However, to the extent Tafolla's arguments require an interpretation of
    K.S.A. 2018 Supp. 22-3716, this is a question of law allowing for our unlimited review.
    See Coleman, 311 Kan. at 334-35.
    Tafolla is correct that a district court's discretion to revoke probation and impose a
    probationer's underlying sentence is limited by K.S.A. 2018 Supp. 22-3716(c). Under the
    version of this statute in effect at the time Tafolla committed his crime, a probationer was
    required to receive a 2- or 3-day intermediate jail sanction and a 120- or 180-day
    intermediate prison sanction before his or her probation could be revoked unless a
    statutory exception to the intermediate sanctions scheme was satisfied. See K.S.A. 2018
    Supp. 22-3716(c)(1), (8), and (9). One such exception is when a defendant is granted a
    dispositional departure to probation. K.S.A. 2018 Supp. 22-3716(c)(9)(B).
    Here it is undisputed that Tafolla was granted a dispositional departure at
    sentencing. Thus, it appears the district court had the statutory and legal authority to
    revoke Tafolla's probation.
    4
    Instead of addressing the applicability of the dispositional departure exception to
    the intermediate sanctions requirement, Tafolla's brief focuses on whether the district
    court wrongly applied the 2019 amendments to K.S.A. 22-3716—which eliminated the
    second intermediate sanction requirement of 120- or 180-days in prison, see K.S.A. 2019
    Supp. 22-3716(c)(1) and (2)—and claims the district court "never invoked a statutory
    bypass exception." We are unaware of any requirement in K.S.A. 2018 Supp. 22-
    3716(c)(9)(B) (dispositional departure exception) that requires the district court to do so,
    and Tafolla does not point to any authority supporting this proposition. The "failure to
    support a point with pertinent authority or show why it is sound despite a lack of
    supporting authority . . . is akin to failing to brief the issue." State v. Salary, 
    309 Kan. 479
    , 481, 
    437 P.3d 953
     (2019). An issue not briefed is deemed waived or abandoned.
    State v. Arnett, 
    307 Kan. 648
    , 650, 
    413 P.3d 787
     (2018).
    Moreover, even if we were to assume the district court was required to make a
    finding invoking the dispositional departure exception to the intermediate sanctions
    requirement, Tafolla never raised this issue before the district court. Generally, a party
    bears the responsibility to object to inadequate findings and give the district court the
    opportunity to correct them. If there is no objection, then we can presume the district
    court "found all facts necessary to support its judgment." McIntyre v. State, 
    305 Kan. 616
    , 618, 
    385 P.3d 930
     (2016).
    Here, as we have explained, it is undisputed that Tafolla received a dispositional
    departure to probation. Both parties mentioned this at the probation violation hearing, as
    did the district court. Thus, we hold the district court had the legal authority to revoke
    Tafolla's probation and impose his underlying prison sentence. As Tafolla makes no
    argument concerning the wisdom of the district court's revocation decision, we find no
    abuse of discretion.
    Affirmed.
    5
    ***
    MALONE, J., dissenting: I respectfully dissent and would remand for Jeremiah J.
    Tafolla to receive a new dispositional hearing in accordance with our court's published
    opinion in State v. Duran, 
    56 Kan. App. 2d 1268
    , 1277, 
    445 P.3d 761
     (2019). The district
    court could have bypassed the statutory 120- or 180-day intermediate prison sanction
    because Tafolla originally received a dispositional departure to probation. But the district
    court's decision to rely on the dispositional departure exception was discretionary, and it
    did not invoke that exception in revoking Tafolla's probation. See K.S.A. 2018 Supp. 22-
    3716(c)(9)(B). I would remand for a new dispositional hearing in which the district court
    must either impose the statutory intermediate prison sanction or rely on a proper statutory
    ground to bypass the sanction.
    6
    

Document Info

Docket Number: 122331

Filed Date: 6/11/2021

Precedential Status: Non-Precedential

Modified Date: 6/11/2021