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. 
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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 
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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. 
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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.
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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 probationrevocation 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 
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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 
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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 felonytheft 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 
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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 sexoffender-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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