                           NOT DESIGNATED FOR PUBLICATION

                                              No. 120,991

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                           STATE OF KANSAS,
                                               Appellee,

                                                    v.

                                       ROBERT LYNYRD HILL,
                                            Appellant.


                                    MEMORANDUM OPINION

        Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed July 17,
2020. Affirmed in part, reversed in part, and remanded with directions.


        Regina M. Probst, of Hutchinson, for appellant.


        Natasha Esau, assistant district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellee.


Before WARNER, P.J., MALONE and BRUNS, JJ.


        PER CURIAM: Robert Lynyrd Hill pled guilty to multiple crimes in four criminal
cases. The district court sentenced him to probation in each case. A few months later, the
district court found Hill violated the terms of his probation and revoked his probation.
Hill appeals, claiming that (1) the district court erred in revoking his probation when a
medical condition rendered him unable to assist in his defense; (2) there was insufficient
evidence to support the district court's finding that he violated his probation by
possessing a firearm; and (3) the district court abused its discretion by revoking his
probation instead of imposing an intermediate sanction. We find merit only in Hill's final

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claim, so we affirm the district court's finding that Hill violated the terms of his probation
but remand for the district court to conduct a new dispositional hearing.


                                           FACTS

       This appeal stems from Hill's guilty pleas, pursuant to two separate plea
agreements, to multiple felony and misdemeanor crimes across four cases. In the first
plea agreement—a global plea agreement—Hill pled guilty to conduct charged in three
cases—17CR835, 17CR974, and 17CR1007. In the second plea agreement, Hill pled
guilty to aggravated battery in case 17CR1090. The district court consolidated the four
cases for appeal.


       On January 26, 2018, the district court sentenced Hill in the three cases from the
global plea agreement. In 17CR835, the district court sentenced Hill to an underlying
prison sentence of 16 months with 12 months' postrelease supervision but granted his
dispositional departure motion and imposed 12 months' probation. In 17CR974, the
district court sentenced Hill to an underlying prison sentence of 32 months with 12
months' postrelease supervision but granted his dispositional departure motion and
imposed 24 months' probation. In 17CR1007, the district court sentenced Hill to an
underlying sentence of 12 months' imprisonment but imposed 24 months' probation. The
district court ordered the term of probation in 17CR1007 to start after Hill served 30 days
in jail. The district court ordered the three sentences be served consecutively.


       On March 1, 2018, in 17CR1090, the district court sentenced Hill to an underlying
prison sentence of 32 months with 12 months' postrelease supervision but granted his
dispositional departure motion and imposed 24 months' probation. The district court
ordered the sentence in 17CR1090 to run consecutive to the sentences in the three cases
from the first plea agreement. The district court ordered restitution on March 19, 2018.



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Probation revocation proceedings


       On the night of March 10, 2018, and the early morning of March 11, 2018, Rose
Fragoza's dog heard something outside and was going "nuts." When Fragoza went out to
her yard the next morning, "something blue caught [her] attention," so she walked over to
it and found sunglasses, a cell phone, a blue bag, and a gun. That same evening, law
enforcement encountered Hill about a block and a half north of Fragoza's house after
someone called 911. Law enforcement took Hill to the hospital because he was partially
undressed and acting "bizarre."


       Hutchinson Police Detective Travis Lahann followed up on the case after the items
from Fragoza's yard were taken into evidence. On March 12, 2018, Hill came to the
police station and asked for his cell phone so Lahann took Hill to the interview room to
talk with him. Lahann showed Hill a picture of the items retrieved from Fragoza's yard
and Hill identified the cell phone as his. When asked what happened, Hill told Lahann
that he was smoking marijuana the "night or early morning hours of March 11 of 2018,"
and he blacked out and did not remember what else happened. On March 12, 2018, Hill
received a text on his cell phone stating: "Where my gun freak."


       On March 20, 2018, the State moved to revoke Hill's probation. The motion
alleged that Hill (1) admitted to using Xanax, marijuana, and alcohol on March 7, 2018;
(2) failed to report on March 12, 2018; (3) "engaged in illegal activity of Felon in
Possession of a Firearm as referenced in Hutchinson Police Department case 2018-6092";
(4) admitted to using methamphetamine and marijuana on nine dates in March 2018; and
(5) admitted he lost the job he was supposed to start. The district court appointed counsel
to represent Hill in the probation revocation proceedings.


       On March 30, 2018, the district court held a probation revocation hearing. Hill
stipulated to allegations one and two—using Xanax, marijuana, and alcohol and failing to
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report on March 12, 2018. Because Hill disputed the third allegation, the State requested
the matter be set for an evidentiary hearing. The district court scheduled the hearing for
April 25, 2018, but on that date, the district court granted Hill's request for a continuance
to further investigate the third allegation.


       On May 1, 2018, the district court held the evidentiary hearing. At the beginning
of the hearing, Hill's counsel stated:


                "I have received from my client yesterday afternoon in my office a discharge
       instruction from the Hutchinson Regional Medical Center . . . . Unfortunately, Mr. Hill
       has had a medical condition that's popped up that's prevented him from being able to
       adequately assist in the preparation of his defense up and to this point and I would request
       a final continuance of this hearing."


       The district court denied Hill's request for a continuance. The State then put on
evidence of the remaining violations. The State called Fragoza and Lahann, who each
testified to the events of March 10, 11, and 12, 2018. Lahann stated that based on their
investigation, law enforcement did not believe there was enough evidence to charge Hill
with a crime.


       Matt Gabrielson, Hill's intensive supervision officer in March 2018, testified that
when Hill reported on March 16, 2018, he admitted to using meth and marijuana every
day since getting out of jail on March 7, 2018. Hill also told Gabrielson that he was fired
for not showing up to his construction job. John Pahl, Hill's intensive supervision officer
after Gabrielson, testified that he never met Hill because Hill had not reported.


       After the State presented its evidence, Hill again requested a continuance stating
he had not yet spoken with his attorney about everything for the case and was still
deciding whether to put on evidence. The State objected but the district court said the
case could be reset to allow Hill to present his case. The court began scheduling the
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hearing when Hill's counsel said, "I apologize. I'm getting some mixed signals, Your
Honor. It does appear that my client is now wanting and willing to proceed to argument
on disposition."


       After hearing the parties' arguments, the district judge summarized the evidence
and revoked Hill's probation stating, "That's enough of preponderance for me so I find
that the allegations in the motion to revoke in each of the cases are established. Sentences
will be ordered executed." The district court did not consider or discuss any intermediate
sanctions, and the court made no findings to circumvent intermediate sanctions. Hill
timely appealed the order revoking his probation.


   DID THE DISTRICT COURT VIOLATE HILL'S RIGHT TO ASSIST IN HIS OWN DEFENSE?

       Hill claims for the first time on appeal that the district court violated his rights
under the Sixth Amendment to the United States Constitution when it proceeded with the
revocation hearing without "further inquiry into the medical and mental state of [Hill]."
Hill argues that he was "unable to assist with his own defense" as evidenced by the
medical documentation he presented at the hearing, his actions on March 11, 2018, and
his giving counsel "'mixed signals'" at the revocation hearing.


       The State addresses this issue as one challenging the district court's denial of Hill's
motion for a continuance. The State argues the district court did not err in denying Hill's
motion for a continuance because Hill had counsel and sufficient time to prepare for the
hearing. The State also points out the district court allowed Hill to present his defense at a
later date, but Hill rejected that option.


       Hill's entire argument on this issue in his appellate brief is as follows:




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               "Counsel for the Defendant informed the Court at the beginning of the hearing
       that the Defendant had provided medical documentation stating he was unable to assist
       with his own defense. In fact, when the Defendant's cellular phone had gone missing, the
       Defendant was found naked on a stranger's porch, thus demonstrating a lack of rational
       thinking. Furthermore, during the probation violation hearing Counsel for the Defendant
       clearly stated, '"I am getting mixed signals,"' which demonstrated that the Defendant was
       unable to participate meaningfully in his own defense. Therefore, the Defendant's Sixth
       Amendment privileges were violated when the Court proceeded without further inquiry
       into the medical and mental state of the Defendant."


       This court does not address issues, including constitutional claims, raised for the
first time on appeal. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). There is
an exception that allows an appellate court to address an issue for the first time on appeal
to prevent the denial of a fundamental right. 299 Kan. at 493. But Supreme Court Rule
6.02(a)(5) (2020 Kan. S. Ct. R. 34) requires the appellant to explain why an issue was not
raised below and why it should be considered for the first time on appeal. The rule is
strictly enforced and an appellant's failure to address why an issue should be considered
for the first time on appeal constitutes insufficient briefing. State v. Godfrey, 301 Kan.
1041, 1044, 350 P.3d 1068 (2015). Hill does not explain why his constitutional claim was
not raised below nor why it should be considered for the first time on appeal.


       Moreover, Hill merely quotes the Sixth Amendment and then lists facts to support
his claim that he could not assist in his own defense. He cites no legal authority to
support his contention that the district court had a duty to inquire into his medical and
mental state. He cites no relevant standard of review and he provides no analysis to
explain how the facts identified establish that the district court breached its alleged duty
to inquire into his medical and mental health. Hill's claim is inadequately briefed, and we
find his issue abandoned. See State v. Sprague, 303 Kan. 418, 425, 362 P.3d 828 (2015)
("When a litigant fails to adequately brief an issue it is deemed abandoned.").



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        WAS THERE SUFFICIENT EVIDENCE TO SUPPORT THE DISTRICT COURT'S
  FINDING HILL VIOLATED THE TERMS OF HIS PROBATION BY POSSESSING A FIREARM?

       Next, Hill claims the district court erred in revoking his probation "in part"
because there was not sufficient evidence to establish by a preponderance of the evidence
that he possessed a firearm. The State argues there was sufficient evidence to support the
district court's decision to revoke Hill's probation because it showed that he possessed a
firearm, used methamphetamine, and failed to report.


       As a preliminary matter, the district court found Hill committed four other
probation violations on top of the violation based on possession of a firearm. Hill does
not challenge any of the other violations, which each independently support the district
court finding that Hill violated the terms of his probation. Because Hill fails to address
the district court's alternative grounds for finding he violated the terms of his probation,
we could decline to address this issue. See State v. Novotny, 297 Kan. 1174, 1179-80, 307
P.3d 1278 (2013) (declining to address an appellant's challenge to one basis of district
court's ruling when appellant failed to challenge the district court's alternative ruling).


       In any event, we will briefly address the merits of Hill's claim. A violation of the
conditions of probation must be established by a preponderance of the evidence. State v.
Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). "'A preponderance of the evidence
is established when the evidence demonstrates a fact is more probably true than not true.'"
State v. Lloyd, 52 Kan. App. 2d 780, 782, 375 P.3d 1013 (2016). Probation can be
revoked upon commission of a new crime even if the crime wes never charged. State v.
Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.3d 844 (2007) (citing State v. Rasler, 216
Kan. 292, 295, 532 P.2d 1077 [1975]).


       The State asserted that Hill violated his probation by committing the crime of
felon in possession of a firearm. To prove this allegation, the State needed to show that


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Hill was a felon and was in possession of a firearm. See K.S.A. 2019 Supp. 21-6304.
There is no dispute that Hill was a felon. Under the criminal code, "possession" requires
"having joint or exclusive control over an item with knowledge of or intent to have such
control or knowingly keeping some item in a place where the person has some measure
of access and right of control." K.S.A. 2019 Supp. 21-5111(v).


       Here, the State's evidence showed that (1) Hill's cell phone was found near a
firearm in Fragoza's yard; (2) Hill was found a block and a half north of Fragoza's yard;
and (3) Hill received a text message that said: "Where my gun freak." This was sufficient
evidence for the district court to reasonably infer that Hill more probably than not
possessed the firearm found with his cell phone in Fragoza's yard. Thus, there was
sufficient evidence to support the district court's finding that Hill violated the terms of his
probation by possessing a firearm.


             DID THE DISTRICT COURT ABUSE ITS DISCRETION BY REVOKING
          HILL'S PROBATION WITHOUT IMPOSING AN INTERMEDIATE SANCTION?

       Finally, Hill claims the district court erred in executing his original sentences
instead of imposing an intermediate two- or three-day jail sanction. This court reviews
the propriety of the sanction for a probation violation imposed by the district court for an
abuse of discretion. State v. Coleman, 311 Kan. __, 460 P.3d 828, 830 (2020). Judicial
discretion is abused if the judicial decision (1) is arbitrary, fanciful, or unreasonable; (2)
is based on an error of law; or (3) is based on an error of fact. State v. Gonzalez-
Sandoval, 309 Kan. 113, 126-27, 431 P.3d 850 (2018).


       The district court's discretion in imposing a sanction is limited by statute. K.S.A.
2019 Supp. 22-3716 outlines the procedure for revoking a defendant's probation. It
provides that once a defendant has violated the conditions of probation, the district court
must apply an intermediate sanction before revoking probation and executing the


                                               8
underlying sentence. K.S.A. 2019 Supp. 22-3716(c)(1). But there are some exceptions
that allow the district court to revoke the defendant's probation without first imposing
intermediate sanctions, including if the defendant commits a new crime, if the safety of
the members of the public will be jeopardized by the imposition of intermediate
sanctions, or if the assignment to community correctional services was granted as the
result of a dispositional departure. K.S.A. 2019 Supp. 22-3716(c)(7)(A)-(C).


       Hill argues that the district court did not make particularized facts establishing
why he would be a danger to the community or why his welfare would not be served if he
was to remain on probation. The State argues the district court did not have to impose an
intermediate sanction because the district court could have revoked his probation under
the dispositional departure or new crime exceptions.


       Here, the district court revoked Hill's probation and executed the underlying
sentence without considering any intermediate sanctions. When revoking Hill's probation,
the district judge stated:


       "Well, the plan that we had was for him to be in jail and get, you know, some clean time
       so that he would have a chance to work this plan. We had to depart from the presumption
       because he was Criminal History Category A. When we got out we didn't have a slip. We
       drove straight, you know; we didn't slide off the road, we aimed the car straight into the
       ditch and we kind of got down in the ditch and we kept on going in the ditch using drugs,
       not reporting, possessing guns, going out and getting yourself so messed up that you don't
       even know where you are . . . . Your cell phone is there with a gun, some guy is texting
       you about wanting his gun. That's enough of preponderance for me so I find that the
       allegations in the motion to revoke in each of the cases are established. Sentences will be
       ordered executed."


       In its ruling, the district court merely found that Hill's violations of the terms of his
probation—by failing to report, using drugs, possessing guns, and failing to be

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supervised—were sufficient in themselves to support revoking his probation. While the
district court mentioned that Hill received a dispositional departure, the district court did
not cite this as a reason for revoking Hill's probation. Nor did the district court cite the
new crime exception. Finally, the district court did not mention, let alone make
particularized findings, that the public safety or offender welfare exception applied.


       To the extent that the State claims the district court could have revoked Hill's
probation based on the dispositional departure exception or the new crime exception, the
State is correct that the statute allows the district court to bypass intermediate sanctions
and revoke a defendant's probation for those reasons. But the district court here did not
cite either of these exceptions, which provide the district court "may" revoke probation if
the sentence was a result of a dispositional departure or the defendant committed a new
crime. K.S.A. 2019 Supp. 22-3716(c)(7)(B) and (c)(7)(C). Because the district court did
not invoke either exception, we cannot affirm the district court's decision on that basis as
it would result in this court affirming the district court for a discretionary decision it did
not make. See State v. Duran, 56 Kan. App. 2d 1268, 1277, 445 P.3d 761 (2019), petition
for rev. filed July 19, 2019.


       The district court abused its discretion when it revoked Hill's probation without
citing an exception allowing it to bypass intermediate sanctions. Thus, we reverse the
district court's order for Hill to serve his original sentences and remand for a new
dispositional hearing. On remand, the district court must either cite an exception that
would allow it to bypass intermediate sanctions or impose an intermediate sanction.


       Affirmed in part, reversed in part, and remanded with directions.




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