NOT DESIGNATED FOR PUBLICATION
No. 123,474
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DAVID LEE JURADO SR.,
Appellant.
MEMORANDUM OPINION
Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed April 22, 2022.
Affirmed.
Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.
Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., CLINE, J., and JAMES L. BURGESS, S.J.
PER CURIAM: While serving probation, David Lee Jurado moved to Texas without
informing his probation officer or the district court. He was extradited from Texas 28
months later. At the revocation hearing, the court found the State did not unreasonably
delay in serving the arrest warrant. The court subsequently revoked his probation and
imposed the underlying 54-month sentence. On appeal, Jurado argues that the State did
not make reasonable efforts to locate him and the district court abused its discretion in
revoking his probation and not granting a durational departure. Finding no error, we
affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
In February 2016, the State charged Jurado in Saline County District Court with
five counts of failing to register under the Kansas Offender Registration Act between
September 2015 and January 2016, each a severity level 6 person felony. Jurado entered
into a plea agreement, pleading guilty to two counts and agreeing to not request a
sentencing modification if his probation were revoked. The State dismissed the remaining
counts and recommended probation but requested the underlying counts be served
consecutively. The district court accepted Jurado's pleas and, in February 2017, granted a
dispositional departure to 24 months' probation with a controlling underlying 54-month
prison term. As probation conditions, the court ordered Jurado to inform his probation
officer of any changes in address and to obey any travel restrictions.
In early March 2017, Jurado reported to community corrections and completed
initial screening documents. He did not return for his intake a few days later. He called to
reschedule it twice but did not attend either rescheduled appointment. Community
corrections sent a letter by certified mail to Jurado's address instructing him to report in
mid-April. When he failed to do so, the State filed a motion to revoke Jurado's probation.
On April 27, the court issued a bench warrant.
That same day, the Saline County Sheriff's Office took several steps. It entered the
warrant into its system, and documents indicate the sheriff's office attempted to serve the
warrant and sent a copy to Sedgwick County (which also had a warrant out for Jurado
due to probation violations). It also uploaded the warrant to the National Crime
Information Center (NCIC)—a national database accessible to law enforcement
agencies—along with Jurado's identifying information, including his name and aliases,
social security number, date of birth, and KBI and FBI numbers. To ensure the NCIC
entry remained active and updated, the sheriff's office validated the information in
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September 2018 and July 2020. This involved checking whether Jurado had other
outstanding warrants and whether another state had issued him a driver's license or other
identification.
Jurado was arrested in Sedgwick County in August 2019 after being extradited
from Texas. The sheriff's office placed a detainer on Jurado in September 2019; he
remained in custody until he was returned to Saline County and served the bench warrant
in September 2020. After his return, the State filed an amended motion to revoke Jurado's
probation, arguing he had absconded. In response, Jurado filed a motion to discharge him
from probation based on the State's lack of efforts to locate him. Alternatively, he
requested a durational departure to 12 months if the court revoked his probation. The
district court held a probation revocation hearing in November.
At the hearing, various sheriff's office employees explained that the NCIC
validations were the only additional steps taken to locate Jurado. Jurado testified that he
went to Texas for a job opportunity at the end of February or March 2017. He lived in
Fort Worth, worked various jobs, obtained a Texas driver's license, and filed his taxes
and voted in the state. He did not inform community corrections or the court before he
moved. He returned to Kansas only after a police officer ran his identification and found
he was wanted for a probation violation in Wichita.
Following the presentation of evidence, the district court denied Jurado's discharge
motion, finding the State made reasonable efforts to locate him. It also concluded Jurado
absconded, revoked his probation, denied his departure motion, and imposed the
underlying 54-month sentence.
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ANALYSIS
On appeal, Jurado argues the State violated his due process rights by failing to
make reasonable efforts to serve him with the bench warrant and that the court erred by
not imposing a graduated sanction or a lesser sentence. The State did not violate Jurado's
due process rights. It did not waive the probation violation, and Jurado was not
prejudiced by the delay. Further, the court did not abuse its discretion when it revoked
Jurado's probation and imposed the underlying 54-month sentence.
1. The State did not violate Jurado's due process rights.
Jurado argues the State violated his due process rights. He contends the State
waived its right to a probation revocation hearing when it unreasonably delayed in
finding him and serving the bench warrant, and, alternatively, the delay prejudiced him.
The Due Process Clause of the Fourteenth Amendment to the United States
Constitution provides certain protections to individuals accused of violating probation
conditions. State v. Hall, 287 Kan. 139, 143, 195 P.3d 220 (2008). These protections
require the State to issue and execute an arrest warrant for a violation without
unreasonable delay. 287 Kan. at 144. An unreasonable delay infringes upon a
probationer's due process rights and deprives a court of jurisdiction over the alleged
violation. 287 Kan. at 145; State v. Curtis, 42 Kan. App. 2d 132, Syl. ¶ 2, 209 P.3d 753
(2009).
To show unreasonableness, a delay must either prejudice the probationer or
indicate the State has waived its right, either implicitly or explicitly, to pursue the
violation. 42 Kan. App. 2d 132, Syl. ¶¶ 4-5. Waiver occurs when the State knows or
could have discovered the probationer's whereabouts using reasonable diligence but fails
to timely execute the warrant. State v. Alexander, 43 Kan. App. 2d 339, Syl. ¶ 1, 225 P.3d
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1195 (2010). Under waiver, a probationer need not establish prejudice. Curtis, 42 Kan.
App. 2d 132, Syl. ¶ 4.
Whether the State has acted unreasonably depends on the circumstances of each
case. Hall, 287 Kan. at 145. This requires review of the length of the delay, the reason for
the delay, and whether the probationer has asserted his or her right. Curtis, 42 Kan. App.
2d 132, Syl. ¶ 6. However, the State's actions need only be reasonable, not perfect.
Alexander, 43 Kan. App. 2d 339, Syl. ¶ 2. When a probationer has moved without
informing a probation officer, this court has explained that waiver should only be found
in the unusual circumstance that "law enforcement exhibits a complete indifference to its
responsibilities, like the courts in Haines, Bennett, and Myers were faced with." State v.
Carleton, No. 105,267, 2011 WL 6311920, at *4 (Kan. App. 2011) (unpublished
opinion). Otherwise, probationers would be encouraged to move and avoid detection.
2011 WL 6311920, at *4.
A due process violation presents a legal question, which appellate courts review de
novo. See Alexander, 43 Kan. App. 2d at 342.
Jurado argues that during the 28 months between April 2017 and August 2019, the
State waived the probation violation by failing to take reasonable steps to locate him. See
Hall, 287 Kan. at 153 (when probationer is imprisoned in another county for a new
felony, State does not waive probation violation if it files detainer); State v. Braswell, No.
115,549, 2017 WL 1296084, at *4 (Kan. App. 2017) (unpublished opinion) (under Hall,
filing detainer is sufficient to prevent waiver). He claims this delay prejudiced him
because the State subsequently sought to revoke his probation because he absconded.
This argument seems nonsensical in view of the fact that he did abscond and no one
questions that he did.
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The Carleton court highlighted Bennett and Myers as unusual instances where the
State failed to carry out reasonable efforts. In State v. Bennett, 36 Kan. App. 2d 381, 387,
138 P.3d 1284 (2006), the court found a two-year delay was unreasonable. There, officers
failed to serve Bennett at the address listed on a warrant, found a possible address 4
months after the warrant was issued but did not attempt to serve it, added her as the
"felon of the day" on a newscast after 9 months, ignored a tip at 11 months, and arrested
her based on a tip at 25 months. 36 Kan. App. 2d at 381-83, 386. As the only real effort
to locate Bennett occurred after two years, the court determined the State did not exercise
reasonable diligence and that the delay was unreasonable. 36 Kan. App. 2d at 385-87.
Though Bennett's multiple addresses suggested she may have tried to conceal herself, the
court determined that did not negate the State's duty, and concealment is only one factor
in determining reasonableness. 36 Kan. App. 2d at 387.
In State v. Myers, 39 Kan. App. 2d 250, 251, 255, 178 P.3d 74 (2008), the court
found a two-and-one-half-year delay was unreasonable. At a probation revocation
hearing, the parties stipulated that Myers had moved to Oklahoma without permission.
There was no record that the State attempted to serve the warrant when it was issued, and
the State entered the warrant into the Kansas hot files. As the State presented no evidence
that Myers moved to avoid detection and based on its minimal efforts, the court found the
State acted unreasonably. 39 Kan. App. 2d at 254-55.
The State argues this case is similar to State v. Morales, No. 113,333, 2016 WL
1391779 (Kan. App. 2016) (unpublished opinion), and State v. Deist, No. 114,320, 2016
WL 5853081 (Kan. App. 2016) (unpublished opinion). The Morales court found a 26-
month delay was not unreasonable. 2016 WL 1391779, at *1. In Morales, the Butler
County Sheriff's Department entered the warrant into the county and statewide database
when the warrant was issued, and, 10 months later, shared the warrant with the Marion
County Sheriff's Department, which was unable to serve Morales. At 26 months, Marion
County shared the warrant with the Florence Police Department, which arrested her that
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same month. Noting that it must consider Morales' failure to inform her probation officer
that she had moved multiple times, this court found the State acted reasonably. 2016 WL
1391779, at *4-5.
The Deist court found a 12-month delay was not unreasonable. 2016 WL 5853081,
at *3-4. In Deist, the Reno County Sheriff's Office entered the warrant into a national
database when the warrant was issued and checked Deist's driver's license records. At
three months, Reno County shared the warrant with the Rice County Sheriff's Office and
the Sterling Police Department, which tried to locate Deist at his last known address. That
same month, Reno County updated the national entry and searched if Deist had been
arrested elsewhere. He was eventually arrested in Hutchinson after 12 months. The court
determined that though the State could have done more, such as investigating past
addresses and contacting family and friends, its actions were reasonable. 2016 WL
5853081, at *2-4.
In the present case, 28 months passed before Jurado was arrested in Sedgwick
County. As in Morales and Deist, the Saline County Sheriff's Office promptly entered the
warrant into its system and the NCIC, attempted to serve the warrant, and sent a copy to
Sedgwick County. The sheriff's office next acted in September 2018 when it verified the
NCIC entry and searched for an out-of-state driver's license. No further steps were taken
in the next 11 months, when Jurado was arrested. However, Jurado's decision to move to
Texas without informing the court or his probation officer certainly impeded the State's
efforts.
Ultimately, this case is similar to Morales. The Morales court found similar
delays—10 months and 16 months—were not unreasonable when Morales failed to
inform her probation officer that she moved. Here, the Saline County Sheriff's Office
tried to serve the warrant, entered the warrant in the proper data bases, sent the warrant to
Sedgwick County, which also had a warrant outstanding, and reviewed NCIC for any
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updates. These actions do not reflect the total indifference required to find that there was
a waiver of the intent to pursue the warrant. The State might have done more to pursue
the warrant, but Jurado makes no argument what actions those might have been. In any
event, the State need only act reasonably, not perfectly. Alexander, 43 Kan. App. 2d 339,
Syl. ¶ 2. Under these circumstances, it did not act unreasonably.
Jurado also argues the delay prejudiced him. He asserts that if the State had served
the warrant earlier, the district court could have only imposed a sanction. See K.S.A.
2015 Supp. 22-3716(c)(1) (requiring graduated sanctions for probation violations in
felony cases). He argues that due to the State's delay, the court found he had absconded,
allowing it to bypass these sanctions and revoke his probation. See K.S.A. 2015 Supp.
22-3716(c)(8) (allowing revocation if probationer absconds).
The State had nothing to do with the fact Jurado absconded. His decision and his
actions resulted in the allegation of absconding. The State based its allegation on Jurado's
moving to Texas. Jurado testified that he did so at the end of February or March 2017 and
lived there until he was extradited. Regardless of when the State might have executed the
warrant, whether it occurred after 1 month or after 28 months after leaving the State of
Kansas, the fact remains that Jurado absconded. Whether he was gone for 1 month or 28
months, the probation violation allegation of absconding is totally valid. His argument
that he might have received a sanction if he was arrested sooner is pure speculation
particularly in view of the fact that he essentially did not successfully serve even one day
on probation. He may have had a better shot at a sanction if he had returned to Kansas of
his own volition, but he obviously elected not to.
As the State did not unreasonably delay when serving the warrant, it did not waive
its right to pursue the probation violation. Jurado has not demonstrated that the delay
prejudiced him. The State did not violate Jurado's due process rights.
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2. The district court did not abuse its discretion when revoking Jurado's probation and
imposing the underlying sentence.
Jurado also argues the district court abused its discretion when it did not impose an
intermediate probation sanction and denied his durational departure motion. Neither
constitutes an abuse of discretion.
When Jurado was sentenced for his failure to register, Kansas employed a system
of graduated sanctions for probation violations in felony cases. A court could impose a 2-
or 3-day jail sanction for an initial violation, a 120- or 180-day prison sanction for a
subsequent violation, and revoke probation for a later violation. K.S.A. 2015 Supp. 22-
3716(c)(1)(B)-(E). Courts could bypass these intermediate sanctions if the probationer
absconded from supervision. K.S.A. 2015 Supp. 22-3716(c)(8). In 2017, the Kansas
Legislature added an additional provision permitting revocation if probation was
originally granted due to a dispositional departure. K.S.A. 2017 Supp. 22-3716(c)(9)(B).
The State bears the burden of proving a probation violation by a preponderance of
the evidence. State v. Lloyd, 52 Kan. App. 2d 780, Syl. ¶ 1, 375 P.3d 1013 (2016). Once a
violation has been established, appellate courts review a district court's revocation
decision for an abuse of discretion. State v. McFeeters, 52 Kan. App. 2d 45, 47, 362 P.3d
603 (2015). This same standard applies when reviewing the denial of a departure motion.
See State v. Floyd, 296 Kan. 685, 687, 294 P.3d 318 (2013). A court abuses its discretion
when its decision is arbitrary, fanciful, or unreasonable; based on a mistake of law; or
based on a mistake of fact. McFeeters, 52 Kan. App. 2d at 47. The probationer bears the
burden of showing an abuse of discretion. 52 Kan. App. 2d at 47.
At the revocation hearing, the district court found Jurado absconded. After hearing
from community corrections, the State, and Jurado, the court revoked his probation. It
also denied Jurado's departure motion for a 12-month sentence, noting the conviction
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stemmed from a plea agreement, the State dismissed charges, and Jurado did nothing
while under supervision. However, the sentencing journal entry reflects the court revoked
probation because Jurado absconded and because his original sentence resulted from a
dispositional departure.
Jurado and the State agree a dispositional departure cannot justify revocation in
this case because that provision was added to the statute after Jurado committed his
underlying crimes. See State v. Coleman, 311 Kan. 332, 337, 460 P.3d 828 (2020)
(dispositional departure exception only applies to crimes committed after the 2017
amendment went into effect). The only basis to bypass the intermediate sanctions in this
case is the court finding Jurado absconded.
Jurado does not challenge the court's determination that he absconded. Rather, he
asserts the district court made a legal error by relying on the dispositional departure
provision and by not acknowledging that it had discretion to impose a sanction. He also
claims that the court made a factual error when it stated Jurado did nothing while on
probation. He claims the evidence indicated he complied with various probation
conditions, such as finding employment and obeying the law. It is hard to see how
Jurado's claim has any merit when he never completed the process to be placed on
probation or submitted himself for supervision. He completed some initial screening
forms but never returned to complete the intake process.
Jurado's arguments do not merit reversal. Though the dispositional departure
bypass does not apply, the fact that he absconded clearly does. At the revocation hearing,
the court solely relied on Jurado's absconding, which is a proper legal basis to revoke
probation. This independently supports the court's revocation decision. The record does
not suggest the court believed it lacked the authority to impose an intermediate sanction.
Its decision was not guided by a factual error. The court's comment simply highlighted
that Jurado could not have completed any of his probation conditions while under
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community corrections supervision because he went to Texas before completing his
intake. See State v. Dubish, 236 Kan. 848, 853, 696 P.2d 969 (1985) (explaining purpose
of probation is probationer's rehabilitation while under supervision of probation officer
and under power of court). By absconding, Jurado was not under that supervision. The
court did not abuse its discretion by revoking his probation.
Jurado also asserts the court abused its discretion when it denied his durational
departure motion to reduce his sentence to 12 months. Given the nonviolent nature of his
underlying offense, a 52-month Sedgwick County sentence for failing to register, his age,
and community corrections' willingness to supervise him, he contends no reasonable
person would have imposed the 54-month sentence.
However, by entering the plea agreement, Jurado waived his right to request a
sentencing modification if the court revoked his probation. Courts have upheld waivers of
similar rights. See State v. Shull, 52 Kan. App. 2d 981, 988, 381 P.3d 499 (2016) (if
waiver is unambiguous, plea agreement may waive right to appeal); State v. Bennett, 51
Kan. App. 2d 356, Syl. ¶ 2, 347 P.3d 229 (2015) (if properly informed, defendant may
waive right to have jury determine aggravating factors for upward durational departure).
Here, the plea tender stated Jurado waived his right, and the court noted that condition at
the plea hearing. As the waiver is unambiguous, Jurado waived his right to request a
modification. But see State v. Sandoval, 308 Kan. 960, 963-64, 425 P.3d 365 (2018)
(under K.S.A. 2017 Supp. 22-3716[c][1][E], after revoking probation, court may impose
the original sentence or any lesser sentence).
Even if Jurado had not waived this right, the court's decision was not
unreasonable. Jurado benefited from the plea agreement when the State dismissed three
of his charges. He failed to carry out his obligation when he left the state before
completing his community corrections intake and remaining absent from the state. Given
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this failure, it was not unreasonable to impose the 54-month underlying sentence Jurado
agreed to in the plea agreement.
The district court did not abuse its discretion by revoking Jurado's probation and
imposing the underlying sentence.
Affirmed.
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