State of Kansas v .TERRANCE W. PONDER

On October 28, 2014, the State charged Ponder with violation of the Kansas

Offender Registration Act (KORA) for actions on or about September 1, 2014. Ponder

was not arrested until June 2018 for this offense.

Ponder ultimately entered into a plea agreement with the State, under which he

pleaded guilty to the KORA noncompliance charge. In his presentencing dispositional

departure motion, Ponder stated his belief that he had a criminal history score of B.

At Ponder's sentencing hearing, the district court began by stating that the

presentence investigation (PSI) report revealed that Ponder's criminal history score was

A, and the parties agreed. Yet later in the hearing, the State realized a mistake with

Ponder's criminal history score. The State explained that one of Ponder's prior

convictions for a KORA violation was an element of his present conviction, so it should

not have been scored as a person felony and his criminal history score should be B.

Ponder's counsel agreed that Ponder's criminal history score was B.

After hearing the parties' arguments and a statement from Ponder, the district court

granted Ponder's dispositional departure motion—a request for probation rather than a

presumptive prison term. The district court imposed a 36-month supervised probation

term with an underlying sentence of 128 months in prison and 24 months of postrelease

supervision.

3

A series of probation violations followed, the details of which we will address as

necessary later in this opinion. But at the fifth and final probation violation hearing, the

district court determined that Ponder's continued behavior showed he was simply not

amenable to probation and that he had committed a new crime. Accordingly, the district

court revoked probation and imposed Ponder's underlying 128-month prison sentence.

Ponder filed a timely notice of appeal.

ANALYSIS

I. THE STATE CONCEDES THAT PONDER'S 2006 FLORIDA CONVICTION SHOULD NOT

HAVE BEEN SCORED AS A PERSON FELONY.

Ponder argues that his 2006 Florida conviction for robbery was incorrectly scored

as a person felony in his PSI report, and in turn the district court incorrectly calculated his

criminal history score as B. Ponder claims that the controlling law for what constitutes a

comparable offense for the classification of out-of-state felonies for his case is the

identical-to-or-narrower-than test from State v. Wetrich, 307 Kan. 552, 562, 412 P.3d 984

(2018). He argues that under the identical-to-or-narrower-than test, his Florida robbery

conviction is not comparable to Kansas robbery because the elements of robbery under

Florida law are broader than the elements of robbery in Kansas. As such, he claims his

Florida robbery conviction should have been scored as a nonperson felony resulting in his

criminal history score being C, and he is serving an illegal sentence.

The State bears the burden of establishing a defendant's criminal history. K.S.A.

2022 Supp. 21-6814(b). The State can satisfy its burden by providing to the offender and

the court a summary of the offender's criminal history. If the defendant does not provide

notice to the State of alleged errors in the State's summary, then the summary satisfies the

State's burden, and the burden of proof shifts to the offender to prove the alleged criminal

4

history error by a preponderance of the evidence. State v. Roberts, 314 Kan. 316, 322,

498 P.3d 725 (2021); see K.S.A. 2022 Supp. 21-6814(c).

Here, the State concedes that the identical-to-or-narrower than test applies to

Ponder's case and that under this test, Florida robbery is broader than Kansas robbery.

See State v. Gales, 312 Kan. 475, 481, 476 P.3d 412 (2020) (finding that the legality of a

sentence is controlled by the law in effect at the time the sentence was pronounced).

In other words, it concedes Ponder has established by a preponderance of the evidence

that the State's criminal history summary was in error. Accordingly, the State concedes

that Ponder is serving an illegal sentence because his Florida robbery conviction was

improperly scored as a person felony. As a result, his criminal history score should have

been C, subjecting him to 60 months in prison, instead of 128 months. See K.S.A. 2014

Supp. 21-6804. We accept the State's concession, vacate Ponder's sentence, and remand

the case for resentencing consistent with this opinion.

II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN REVOKING PONDER'S

PROBATION AND IMPOSING HIS UNDERLYING SENTENCE.

Once a probation violation is established, a district court has discretion to revoke

probation unless the court is otherwise limited by statute. State v. Tafolla, 315 Kan. 324,

328, 508 P.3d 351 (2022). Thus, we review a district court's revocation of an offender's

probation for an abuse of discretion. State v. Coleman, 311 Kan. 332, 334, 460 P.3d 828

(2020). Judicial discretion is abused only if (1) no reasonable person would take the view

adopted by the district court; (2) it is based on an error of law; or (3) it is based on an

error of fact. State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018). Ponder bears the

burden of showing such abuse of discretion. See 307 Kan. at 739.

Ponder argues that the district court abused its discretion by committing an error

of law. He contends that the court did not impose intermediate sanctions before revoking

5

his probation, as required by K.S.A. 2014 Supp. 22-3716(b)(3)(B)(ii). Additionally,

Ponder argues that the district court did not properly invoke an intermediate sanctions

bypass provision. So that will be the focus of our review.

The statute in effect at the time of Ponder's criminal conduct supporting his

conviction governs the district court's probation revocation decision. See Coleman, 311

Kan. at 337. Ponder's conviction resulted from acts committed on or about September 1,

2014, thus the district court needed to exercise its discretion to revoke Ponder's probation

and order him to serve his underlying sentence within the statutory framework of K.S.A.

2014 Supp. 22-3716.

Under K.S.A. 2014 Supp. 22-3716(c)(1)(E), a sentencing court must impose either

a 2- or 3-day jail sanction and then a 120- or 180-day prison sanction before revoking an

offender's probation. The statute provides some exceptions to this intermediate

sanctioning scheme. A sentencing court may revoke probation without having previously

imposed a sanction under K.S.A. 2014 Supp. 22-3716(c)(1)(B)-(D) if:

"[T]he offender commits a new felony or misdemeanor or absconds from supervision

while the offender is on probation, assignment to a community correctional services

program, suspension of sentence or nonprison sanction, the court may revoke the

probation, assignment to a community correctional services program, suspension of

sentence or nonprison sanction of an offender pursuant to subsection (c)(1)(E) without

having previously imposed a sanction pursuant to subsection (c)(1)(B), (c)(1)(C), or

(c)(1)(D)." (Emphasis added.) K.S.A. 2014 Supp. 22-3716(c)(8).

A sentencing court may also revoke probation without having previously imposed

an intermediate sanction under K.S.A. 2014 Supp. 22-3716(c)(1)(B)-(D) if "the court

finds and sets forth with particularly 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. 2014 Supp. 22-3716(c)(9).

6

The parties are familiar with the details of each of the five separate probation

revocation allegations and hearings. But suffice it to say, that although the district court

did impose some intermediate sanctions along the way, the district court did not impose a

2- or 3-day sanction or a 120- or 180-day sanction before revoking Ponder's probation as

required by K.S.A. 2014 Supp. 22-3716(c)(1). So we must determine whether the district

court properly invoked a bypass provision. A more detailed discussion of the probation

revocation hearing is in order.

The fourth and fifth probation violation warrants were heard together, so we will

first examine the basis for the violations. In its fourth probation revocation warrant the

State alleged that Ponder violated his probation by failing to report and testing positive

for methamphetamines/amphetamine and cocaine. When Ponder failed to appear at the

probation violation hearing, the district court forfeited his bond and issued a new warrant.

Ponder was arrested a month later, and the State promptly filed its fifth warrant alleging

that Ponder violated his probation by failing to report, testing positive for

meth/amphetamines, cocaine, and THC, and committing a new offense of failure to

register.

The district court held a probation violation hearing for the fourth and fifth

warrants as well as a preliminary hearing on the new crime of failing to register. All

witnesses were present and ready to proceed. Ponder was represented by an attorney at

that hearing but insisted on speaking directly to the court. The court even advised him it

was probably best not to make any admissions of any kind. During that discussion,

Ponder admitted to the probation violations. He admitted that he failed to register in

November 2021—which was the basis for the new felony charge—but offered that he

was on new medication and suffering from cellulitis. He asked that the court impose a

180-day sanction.

7

Ponder was then allowed time to privately speak with his court-appointed attorney,

who was present and with whose representation Ponder stated he was satisfied. After

speaking with her, he expressed his desire to waive his right to a preliminary hearing on

the new registration charge. He confirmed that although he was not pleading guilty to the

charge, he was admitting the allegations of the charge in the probation violation warrant

for purposes of the revocation hearing. Accordingly, the court found that there was

probable cause to believe he had committed the crime and bound him over on that charge

for arraignment two weeks down the road. After waiving his right to an evidentiary

hearing on the probation violations and admitting the allegations in the warrants were

true, the district court found that the allegations were true and continued all matters to the

date of the arraignment on the new registration charge for the parties to enter further

negotiations.

On the date of the final hearing, the district court heard argument primarily related

to disposition. The district court again noted that Ponder had admitted to the violations.

There was significant discussion about Ponder's failure to report, including his failures in

November when he failed to register, with Ponder continuing to offer explanations. After

hearing a request from counsel for modification of the underlying sentence, the court

denied the request and remanded Ponder for the balance of his term. At the end of the

hearing, the State dismissed the new registration charge. It had previously indicated it

may do this if the district court revoked Ponder's probation and remanded him for the

balance of his term.

On the journal entry, the district court cited K.S.A. 2019 Supp. 22-3716(c)(7) and

checked the box for commission of a new crime as the reason for its decision to revoke

Ponder's probation. The district court also stated in the journal entry: "The defendant has

committed the offense of Failure to Register according to Sedgwick County District

Court Case Number 2021-CR-002607-FE."

8

Although the district court did not state specifically at the hearing that it was

relying on Ponder's new crime to revoke his probation, it was discussed at the hearing, it

was clear Ponder had admitted to all the violations, and the court deemed the allegations

to be true. The journal entry indicates that the district court relied on a sanctions bypass

provision in revoking probation because it cited K.S.A. 2019 Supp. 22-3716(c)(7) and

Ponder's commission of a new crime as the reason for its disposition. The equivalent

provision found in K.S.A. 2014 Supp. 22-3716(c)(8) allows a sentencing court to revoke

probation without having previously imposed an intermediate sanction if the offender

commits a new crime or absconds from supervision while on probation.

Ponder's additional contention on appeal that the State failed to meet its burden to

prove that he committed the new KORA noncompliance charge is unavailing. Our

Supreme Court has held that a stipulation to probation violations, alone, is sufficient to

support a sentencing court's revocation of an offender's probation. State v. Hurley, 303

Kan. 575, 581, 363 P.3d 1095 (2016). "Conviction for the act which allegedly violated

the conditions of probation is not required." State v. Lloyd, 52 Kan. App. 2d 780, 782,

375 P.3d 1013 (2016).

At the final probation violation hearing, Ponder waived his right to a preliminary

hearing on the new KORA noncompliance charge, despite the State being prepared with

witnesses ready to testify. Ponder also waived his right to an evidentiary hearing on the

alleged probation violations, including the alleged violation that he had committed a new

crime. Ponder first stated that he was not stipulating to the violation for committing a new

crime, but then the district court asked him if the new crime allegation was true for

purposes of this hearing only Ponder replied, "Yes." The district court accordingly found

that all the alleged violations in both warrants were true and accepted Ponder's waiver of

his right to an evidentiary hearing.

9

The district court did not make an error of law or fact in revoking Ponder's

probation and imposing his underlying sentence. Ponder's stipulation to the commission

of a new crime in violation of his probation, established it—along with his other

violations—by the requisite preponderance of the evidence. See Hurley, 303 Kan. at 581.

Ponder does not challenge that his admission to this violation was knowing and

voluntary.

The State also argues that the district court invoked the sanctions bypass provision

for offender welfare under K.S.A. 2014 Supp. 22-3716(c)(9). But the district court did

not cite this statutory bypass provision in the journal entry. The record does not reflect

that the district court relied on this provision in revoking Ponder's probation, although it

did dance around the offender welfare provision a bit by saying: "Probation just doesn't

work for you. You're not amenable to it. We can't go on."

And later, "But at some point in time, Mr. Ponder, for your own sake, I've got to

impose consequences and not just keep propping you up, which is what I think we're

doing here is propping you up for ultimate failure."

But this court has required more particularized findings. See State v. Duran, 56

Kan. App. 2d 1268, 1276, 445 P.3d 761 (2019) (holding that if "courts can make an

offender welfare finding because a person might violate his or her probation again, the

exception will swallow the rule"). So we must agree with Ponder that the district court

not only did not check the box for the offender welfare bypass, but it did not make the

requisite oral finding either. But this is irrelevant given our finding that the court properly

invoked the bypass provision regarding new crimes under K.S.A. 2014 Supp. 22-

3716(c)(8).

In conclusion, the district court properly relied on a statutory sanctions bypass

provision in revoking Ponder's probation and imposing his underlying sentence after he

10

stipulated to his violations, including the allegation that he committed a new crime while

on probation. Therefore, the district court did not commit an error of law or fact and

therefore did not abuse its discretion.here.

Affirmed in part, sentence vacated, and case remanded with directions