                                        No. 111,771

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                    STATE OF KANSAS,
                                        Appellee,

                                             v.

                                    CURTIS A. BROWN,
                                       Appellant.


                              SYLLABUS BY THE COURT


1.
       Probation violations are often categorized as either technical or substantive
violations depending on whether the act would be unlawful even if the violator weren't on
probation: An act that violates probation conditions but isn't otherwise unlawful is a
technical violation, while an act that violates probation conditions but is otherwise
unlawful is a substantive violation. In Kansas, most felony probationers who commit
technical violations are entitled to an intermediate sanction before their probation is
revoked, while those who commit substantive violations that constitute a felony or
misdemeanor offense may have their probation revoked without first receiving an
intermediate sanction. See K.S.A. 2014 Supp. 22-3716(c).


2.
       The State must provide due process to the defendant before revoking probation for
a violation of its conditions. The due-process right to be heard implicitly requires that any
statements made by the defendant and relied upon to revoke the probation have been
made voluntarily.
3.
        On the facts of this case, where the district court had previously explained the
defendant's right to a hearing, the hearing had been adjourned at the defendant's request,
the attorney told the court when the hearing resumed that the defendant wanted to admit
that he had committed a new crime, and the defendant confirmed his intent before
announcing that he took "full responsibility" for what he had done, the defendant's
statements were voluntary and his due-process rights were not violated.


4.
        Once a probation violation has been established, whether to revoke the defendant's
probation is a discretionary decision for the district court unless a statute specifically
provides otherwise. Unless the district court has made a legal or factual error, an
appellate court may find an abuse of discretion only when no reasonable person would
agree with the district court's decision.


        Appeal from Sedgwick District Court; WILLIAM SIOUX WOOLLEY, judge. Opinion filed
September 4, 2015. Affirmed.


        Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.


        Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.


Before LEBEN, P.J., SCHROEDER and GARDNER, JJ.


        LEBEN, J.: Curtis Brown appeals the district court's decision to revoke his
probation after he admitted committing a new felony while on probation. He argues that
his admission to the offense wasn't voluntary and that the district court abused its
discretion when it revoked his probation.


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       But the district court had told him that he had a right to an evidentiary hearing at
which the State would have to prove any violations, and the defendant acknowledged that
he had discussed admitting to the violation with his attorney before the hearing. We find
no error in the district court's conclusion that the defendant's admission was voluntary,
and we find no abuse of discretion in revoking his probation for committing a new felony
while on probation. We therefore affirm the district court's judgment.


                       FACTUAL AND PROCEDURAL BACKGROUND


       Brown was convicted in 2013 of one count each of aggravated indecent
solicitation, aggravated indecent liberties with a child, and criminal sodomy. Under
Kansas sentencing guidelines, Brown's presumptive sentence for each offense was prison,
not probation. But he pled guilty under a plea agreement in which the State agreed to join
Brown in recommending a dispositional departure to probation, with both sides
recommending the maximum sentences under the guidelines for each offense for
someone with Brown's criminal-history score; the parties also recommended, though, that
the three sentences be made concurrent to one another for a total sentence of 71 months.


       Between the time of Brown's plea in May and his July sentencing, he violated the
terms under which he had been released by testing positive for methamphetamine. Based
on this, the court concluded for sentencing purposes that the State was no longer bound
by the plea agreement and could recommend any lawful sentence. The State still
recommended that the court follow the plea agreement, citing Brown's youth, his lack of
criminal history, his plea (which spared the victim from testifying), and the circumstances
of the offenses.


       The court granted Brown's requested dispositional departure to probation rather
than prison but made Brown's sentences consecutive, which resulted in a total sentence of
122 months in prison if Brown didn't successfully complete his probation. The court

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placed Brown on probation for 36 months with a number of conditions, which included
drug-and-alcohol treatment, sex-offender treatment, and obeying the law.


       Less than 6 months later, in November, the State alleged that Brown had violated
his probation in six ways: failing to provide proof of payment of court costs, using
methamphetamine, failing to obtain employment, failing to report to his probation officer,
failing to enter and complete drug-and-alcohol treatment, and failing to enter and
complete a sex-offender-treatment program. Brown appeared in court with his attorney in
December on these charges. The court advised Brown he had a right to an evidentiary
hearing in which the State would have to prove each allegation; Brown's attorney asked
for an evidentiary hearing.


       The parties appeared for that hearing in January 2014. At the start of the hearing,
Brown's attorney told the court that a new case had been filed against Brown alleging
felony theft, with a preliminary hearing set for the following week. The attorney then said
that Brown was prepared to admit to the six violations previously made but wanted to set
a later date for disposition (a date that would be coordinated based on developments in
the newly filed case), at which the court would decide whether to revoke Brown's
probation or give him another opportunity to complete it. The court then asked Brown
whether he wanted, as his attorney suggested, to admit to the six violations already
alleged by the State and to continue the probation-violation hearing "to see if . . . you can
cut a deal on this [case] and your new case?" Brown said he did. The court found that
Brown had violated his probation in the six ways already alleged. The court also set the
matter over for disposition on February 7.


       The day after the January hearing, the State formally filed an allegation in this
case that Brown had violated his probation by committing a felony theft in December
2013. When our case came back before the court in February 2014 for disposition,
Brown's attorney told the court that he had "spoke[n] at length" with Brown and that

                                              4
Brown "would admit" to the theft charge for the purposes of the probation-violation
hearing but not for purposes of the underlying criminal case for felony theft. The court
then found that Brown had violated the probation based on the theft and confirmed that
Brown understood that he was waiving his hearing right:


               "THE COURT: Well, I'll find the defendant's in violation of all seven counts and
       that he's knowingly and voluntarily waived his hearing. That is what you want to do.
       Correct?
               "THE DEFENDANT: Yes, Your Honor."


Later in the hearing, the defendant asked to address the court personally. Brown said that
he "would just like to say on behalf of myself that I'm taking full responsibility of
everything I've done here."


       Brown's attorney asked that the court continue Brown on probation with whatever
sanction the court deemed appropriate, such as sending Brown to jail for some period of
time as a condition of probation. The State asked that the court require that Brown serve
his underlying prison sentence and not reinstate the probation.


       The district court found that Brown had demonstrated that he was "not amenable
to further probation" based on his failure to comply and ordered that he serve the
underlying prison sentence. Brown's attorney asked for the court to modify the sentence
downward from 122 months to the 71 months the parties had initially recommended, but
the court denied that request.


       Brown has now appealed to this court.




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                                         ANALYSIS


       Traditionally, once a defendant on probation violated that probation, the district
court had the discretion to revoke the probation and order that the defendant serve the
underlying prison or jail sentence. State v. Skolaut, 286 Kan. 219, 227-28, 182 P.3d 1231
(2008); State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). In this situation, where the
district court's decision is a discretionary one, we may reverse only when the district
court has based its decision on a factual or legal error or when no reasonable person
would agree with its decision. State v. McCullough, 293 Kan. 970, 980-81, 270 P.3d 1142
(2012); State v. Gumfory, 281 Kan. 1168, Syl. ¶ 1, 135 P.3d 1191 (2006).


       The district court's discretion was limited by a 2013 statutory change. The new
statute, found now at K.S.A. 2014 Supp. 22-3716(b) and (c), requires, with certain
exceptions, that the district court impose intermediate sanctions before ordering the
defendant to serve the underlying sentence. See State v. Huckey, 51 Kan. App. 2d 451,
Syl. ¶¶ 3-4, 348 P.3d 997 (2015). One of these exceptions ties in to a longstanding
distinction that probation officers, lawyers, and judges have made between technical and
substantive probation violations: An act that violates probation conditions but isn't
otherwise unlawful is a technical violation, while an act that violates probation conditions
but is otherwise unlawful is a substantive violation. See State v. Meeks, 789 So. 2d 982,
985 (Fla. 2001); Cook, Mediation as an Alternative to Probation Revocation
Proceedings, Fed. Probation 48 (Dec. 1995).


       Our statute now tracks this distinction through K.S.A. 2014 Supp. 22-3716(c)(8),
which provides that the district court need not first impose an intermediate sanction when
the offender commits a new felony or misdemeanor while on probation. In that
circumstance, the substantive probation violation is serious enough standing alone to give
the court discretion to revoke the probation and send the defendant to serve his or her
underlying prison sentence.

                                             6
       We should note that just because a probation violation is labeled as only a
"technical" one does not mean it is unimportant. Some can be quite significant—such as
when a person convicted for indecent liberties with a minor violates a probation
requirement not to be alone with minors. In such a case, another exception to the
intermediate-sanction requirement might apply, i.e., that public safety or the defendant's
own welfare would not be served by an intermediate sanction. See K.S.A. 2014 Supp. 22-
3716(c)(9). But the traditional distinction between technical and substantive probation
violations is now reflected in the exception applicable when an offender on probation
commits a new felony or misdemeanor offense, and that's the exception at issue here.


       The district court in Brown's case noted that the original six violations were
"technical" ones but that the new felony theft allowed the court to require that Brown
serve his sentence without first serving an intermediate sanction. (Brown's admission to
"using" methamphetamine, one of the original six violations, was a technical violation;
Kansas law criminalizes methamphetamine possession, not its use. See K.S.A. 2014
Supp. 21-5706[a].) On appeal, Brown seeks to set aside the finding that he had
committed the new felony theft. If successful on that argument, then only the technical
violations would remain, and the district court would have been required to give Brown
an intermediate sanction before sending him to serve the prison sentence.


       Brown's argument rests on a claim that his admission to the new theft should be
thrown out because the admission wasn't truly voluntary. Citing caselaw related to the
voluntariness of confessions in criminal cases generally, Brown argues that his admission
to the felony theft as a probation violation and his waiver of an evidentiary hearing
weren't voluntary; he says that he admitted the violation only after the court had already
indicated it was going to find Brown had violated probation, so Brown's statements were
simply "to appease the court" while seeking leniency. Based on that, he argues that the
court deprived him of due process. The State responds that Brown got all the process he
was due and that his statements were knowing and voluntary.

                                             7
       Brown is right that a probationer is entitled to due process; the Due Process Clause
of the Fourteenth Amendment to the United States Constitution applies whenever the
State deprives someone of liberty, such as by revoking probation and sending the person
to prison. Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93 S. Ct. 1756, 36 L. Ed. 2d 656
(1973); State v. Hall, 287 Kan. 139, 143, 195 P.3d 220 (2008). But a probation-
revocation proceeding comes after a defendant has already been convicted of an offense;
the probation is part of the sentence. So the defendant is not entitled to "the full panoply
of rights due" in a criminal prosecution. See Morrisey v. Brewer, 408 U.S. 471, 480, 92
S. Ct. 2593, 33 L. Ed. 2d 484 (1972) (parole revocation); State v. Yura, 250 Kan. 198,
201-02, 825 P.2d 523 (1992) (probation revocation). For a probation revocation, what the
Supreme Court has called "minimum due process" applies, requiring written notice of the
claimed violation, disclosure of the evidence, an opportunity to be heard and present
witnesses and evidence, the right to confront witnesses (if any are called), a neutral
hearing officer, and a written statement by the factfinder about what evidence was
persuasive and the reasons for revoking probation. See Gagnon, 411 U.S. at 782, 786;
State v. Marquis, 292 Kan. 925, 928-30, 257 P.3d 775 (2011).


       In Kansas, a statute, K.S.A. 2014 Supp. 22-3716(b), governs the procedure for
probation-revocation hearings, and it satisfies these minimum due-process requirements.
State v. Grossman, 45 Kan. App. 2d 420, 424, 248 P.3d 776 (2011). We review
independently, without any required deference to the district court, whether a person's
due-process rights have been violated. Hall, 287 Kan. at 143; State v. Alexander, 43 Kan.
App. 2d 339, 342, 225 P.3d 1195, rev. denied 290 Kan. 1095 (2010).


       Brown's specific claim on appeal—that his admission to a probation violation
wasn't voluntary—does not relate directly to one of the recognized requirements for
minimum due process. But implicit in the right to be heard is a requirement that a
defendant who gives up that right do so voluntarily and that any admissions that form the

                                              8
basis for probation revocation also have been made voluntarily. See People v. Harris, 392
Ill. App. 3d 503, 508, 912 N.E.2d 696 (2009). If a person could be coerced into admitting
the violation and foregoing an evidentiary hearing, the right to a hearing would be
meaningless.


       But even though an admission to a probation violation must be voluntary, a court's
review to assure voluntariness is not as stringent as it would be in an initial criminal case.


       Several strong protections for the defendant come into play in a criminal case that
are not present in the probation context, where the defendant has already been convicted
of an offense for which the probation is part of the sentence. For example, in criminal
investigations, Miranda warnings are given as a procedural way to help assure that
statements to police are voluntary. But a probationer has no right to receive Miranda
warnings from a probation officer, and the probationer has no Fifth Amendment privilege
not to answer incriminating questions if the information is used solely for the probation
revocation. See Minnesota v. Murphy, 465 U.S. 420, 435 n.7, 104 S. Ct. 1136, 79 L. Ed.
2d 409 (1984); State v. D'Armond, No. 110,030, 2014 WL 2590053, at *4 (Kan. App.
2014) (unpublished opinion), rev. denied ___ Kan. ___ (May 12, 2015); State v.
Johansen, 2014 ME 132, ¶¶ 17-18, 105 A.3d 433 (2014). Similarly, in a criminal case,
the Due Process Clause requires that judges explain various rights to a defendant before
accepting a plea. See Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S. Ct. 1709, 23 L. Ed
2d 274 (1969); State v. Valladarez, 288 Kan. 671, 681-82, 206 P.3d 879 (2009); State v.
Rucker, 49 Kan. App. 2d 414, 416-17, 310 P.3d 422 (2013). But those same advisories
are not constitutionally required in probation-revocation proceedings. See United States
v. Segal, 549 F.2d 1293, 1298-1300 (9th Cir.), cert. denied 431 U.S. 919 (1977); United
States v. Williams, 321 Fed. Appx. 486, 489-90 (6th Cir. 2009); Finney v. People, 2014
CO 38, ¶¶ 26-28, 325 P.3d 1044 (2014); Meadows v. Settles, 274 Ga. 858, 858-60, 561
S.E.2d 105 (2002). Accordingly, unless otherwise required by statute, courts need not use
the same extensive procedures used to take guilty pleas in a criminal case, including

                                              9
detailed questioning of the defendant, when receiving a defendant's admission to a
probation violation. See People v. Garcia, 67 Cal. App. 3d 134, 137-38, 136 Cal. Rptr.
398 (1977); Meadows, 274 Ga. at 859-60; Grossman, 45 Kan. App. 2d at 424 (finding
admission by attorney sufficient, even absent discussion directly with defendant, when
defendant did not object).


       So we now look to see whether Brown's admission was sufficiently voluntary
under the circumstances of his case to meet due-process requirements. See Williams, 321
Fed. Appx. at 489-90. The statute that provides the procedural framework for hearings on
probation violations explicitly requires notifying the defendant "of the right to a hearing"
and that "if the defendant is financially unable to obtain counsel, an attorney will be
appointed to represent the defendant." K.S.A. 2014 Supp. 22-3716(b)(2). Brown does not
contend that the court failed to inform him of these things. Neither party has cited any
Kansas caselaw suggesting that any further advisories are constitutionally required before
a court may accept a defendant's probation-violation admission. See State v. Billings, 30
Kan. App. 2d 236, 239, 39 P.3d 682 (2002) (concluding that due process does not require
that trial judge advise defendant of right to present evidence and to cross-examine
witnesses before accepting probation-violation admission); State v. Walker, No. 93,296,
2005 WL 2001748, at *1 (Kan. App. 2005) (unpublished opinion) (same). But we need
not answer the general question of whether any other advisories might be required in
some circumstance to decide this case: In the context of Brown's several hearings before
the district court, his admission to the new felony theft was sufficiently voluntary and
informed for purposes of a probation-violation hearing.


       Here, the judge had advised Brown of the right to an evidentiary hearing at the
initial hearing on the six technical violations. The resolution of those violations was held
over—at Brown's request—to give further time to explore resolution of the new felony-
theft charge. When the parties came back for the final hearing, Brown's attorney said that
Brown wanted to admit to the felony theft for the purpose of the probation-revocation

                                             10
hearing; the court confirmed that Brown wanted to waive the hearing and admit to that
violation.


       Brown complains that his personal admission came only after the district court
had already said that it found him in violation of the probation. But the court's statement
came after Brown's attorney told the court that Brown "would admit" the theft charge for
the purpose of the probation-violation hearing. In addition, Brown told the court later in
the hearing that he was "taking full responsibility of everything I've done here." In the
context of a probation-revocation hearing, Brown has not shown that his admission was
involuntarily made in violation of his due-process rights. See Grossman, 300 Kan. at
1060, 1063 (finding that defendant was not entitled to evidentiary hearing on habeas
claim that his probation-revocation counsel was ineffective; court concluded that
defendant's claim of involuntary admission was rebutted by his repeated and express
admissions at the probation-revocation hearing).


       Since the district court's finding that Brown had violated his probation by
committing a new felony theft remains intact, the district court was not required to enter
an intermediate sanction and thus had discretion to decide whether to reinstate the
probation or send Brown to serve his prison sentence. The court's conclusion that Brown
was "not amenable to further probation" is factually supported. Brown was convicted of
crimes for which the presumed sentence is prison, and he faced a very severe sentence if
he failed on his probation. Yet he failed to take basic, required steps, including reporting
to his probation officer, enrolling in a drug-treatment program, and enrolling in a sex-
offender-treatment program. In addition, he committed a new felony while on probation.
A reasonable person could agree with the district court that sending Brown to serve his
sentence was the proper course.


       The district court's judgment is affirmed.


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