Summary
In Spencer, a panel of this court considered whether a probationer was incorrectly placed on probation with community corrections rather than court services when a risk assessment was unavailable due to her refusal to submit to the assessment on the basis of her Fifth Amendment privilege against self-incrimination.
Summary of this case from State v. MontgomeryOpinion
As Corrected July 10, 2003.
Syllabus by the Court
1. Probation from serving a sentence is an act of grace by the sentencing judge and is granted as a privilege, not as a matter of right. The judge, when granting probation,
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has broad powers to impose conditions designed to serve the accused and the community.
2. Specific language of K.S.A.2002 Supp. 21-4610(c) authorizes a trial court to assign a defendant granted probation to a community correction services program.
3. A person who has pled guilty to a crime but has not yet been sentenced is entitled to exercise the Fifth Amendment privilege against compelled testimonial self-incrimination with respect to the crime to which he or she has pled guilty.
4. Pursuant to K.S.A.2002 Supp. 75-5291(a)(2)(E), any offender who is determined to be "high risk or needs, or both" by the use of a statewide, mandatory, standardized risk assessment tool or instrument is validated for community corrections placement.
5. The defendant in this case had the constitutional right to refuse to provide input in the preparation of the risk needs assessment which is a part of the presentence investigation report. However, with the defendant having done so, it was not a violation of the defendant's Fifth Amendment constitutional rights to be assigned a high risk score on the required risk needs assessment, resulting in the commencement of the defendant's probation with community correction services rather than probation with court services.
Steven R. Zinn, deputy appellate defender, for appellant.
Steven J. Obermeier, assistant district attorney, Paul J. Morrison, district attorney, and Phill Kline, attorney general, for appellee.
Before RULON, C.J., KNUDSON, J., and LARSON, S.J.
LARSON, S.J.
We determine in this appeal if Tadaisha Yong Spencer's constitutional rights were violated when her invoking of her Fifth Amendment rights in the preparation of the risk needs assessment of the presentencing investigation (PSI) report resulted in her being placed on probation with community corrections rather than probation with court services.
We find no constitutional violation and affirm the trial court.
Spencer was charged with one count of criminal use of a financial card in September 2001. As the result of plea negotiations, the charge was reduced to attempted criminal use of a financial card, a severity level 10 felony. The parties agreed to recommend the low grid box imprisonment term and probation with court services. The court accepted the plea and found Spencer guilty.
Spencer's criminal history score was "H," and an offense severity level of 10 was presumptive probation, with an underlying sentencing range of 5-6-7 months. At the sentencing, the court imposed a 5-month sentence but noted Spencer had made no statement in the PSI report and had declined to participate in the required risk needs assessment by invoking her rights under the Fifth Amendment right to the United States Constitution.
The court stated:
"Well, when the defendant declines to participate with the risk needs assessment, thereby putting us in a position where we don't have a valid risk needs assessment that can be completed the court scores that high...." ....
"... She has the right to decline the information.... We're not going to score lower by default. That results in a low risk needs assessment score by every defendant that comes before the Court, unless the criminal history score is-independently, automatically would create a high score."
"...Under these circumstances, she has to be scored highbecause otherwise the whole risk needs process loseseven the last shred of credibility and liability." Thecourt placed Spencer on probation with communitycorrections intensive supervision, stating that if shedid well she could be transferred to standardprobation. Page 1228 Spencerappeals, contending the trial court erred in placingher on community corrections probation instead of courtservices probation because it used her exercise of herFifth Amendment privilege againstself-incrimination during the PSI preparation processas a basis for its actions. TheState counters by arguing Spencer may not complainabout the conditions of her probation, the appellatecourt has no jurisdiction to review a presumptivesentence, and the United States Supreme Court caserelied on by Spencer, Mitchell v. UnitedStates, 526 U.S. 314, 119 S.Ct. 1307, 143 L.Ed.2d424 (1999), related to the length of a drug sentencewhich is not in issue in our case. It istrue that we have no jurisdiction to consider an appealfrom a presumptive sentence, K.S.A. 21-4721(c)(1);State v. Flores, 268 Kan. 657, 659, 999 P.2d919 (2000), but the issue raised relates to aconstitutional violation in determining the terms andconditions of the probation granted. Indiscussing probation in State v. Windom, 23Kan.App.2d 429, 432, 932 P.2d 1019, rev.denied 262 Kan. 969 (1997), we said: "Kansascourts have consistently recognized that probation is aprivilege granted by the sentencing court and the courthas broad power and authority in imposing conditions ofprobation so long as such conditions do not violatestatutory law or constitute an abuse of discretion bythe court. See State v. Walbridge, 248 Kan.65, 68, 805 P.2d 15 (1991). The court in State v.Starbuck, 239 Kan. 132, 133, 715 P.2d 1291 (1986),stated: 'Probation from serving a sentence is anact of grace by the sentencing judge and is granted asa privilege, not as a matter of right. The judge, whengranting probation, has broad powers to imposeconditions designed to serve the accused and thecommunity.'
"Althoughthe imposition of the KSGA [Kansas SentencingGuidelines Act] has curbed the district court'sdiscretion in awarding prison or nonimprisonmentsentences, if probation is granted, the districtcourt's discretion in imposing conditions alongwith the probation has remained the same. See K.S.A.21-4610(c)." Thespecific language of K.S.A.2002 Supp. 21-4610(c)authorizes the trial court to assign a defendantgranted probation to a community correctionalservices program, as was done in this case. There isno question the trial court was within its discretionin determining the conditions to impose on Spencerfor her probation. Spencerdoes not counter either of the above contentions ofthe State but centers her appeal on the contentionthat her Fifth Amendment right againstself-incrimination was violated because [31Kan.App.2d 684] the trial court used her silenceduring the PSI report preparation to grade her riskor needs assessment as being high, resulting in theimposition of more stringent conditions to herprobation. Spencer'sreliance on Mitchell, 526 U.S. 314, 119S.Ct. 1307, 143 L.Ed.2d 424, to compel her to beplaced on court services probation is misplaced.Mitchell pled guilty to distributing cocaine butreserved the right to contest the drug quantity atsentencing. She had been informed she faced amandatory 1-year minimum in prison for distributingcocaine but a 10-year minimum for conspiracy if thegovernment could show she distributed over therequired 5 kilograms. Atthe sentencing hearing, codefendants testified toregular sales by Mitchell that exceeded the 5kilogram threshold and another witness testified thatshe had sold her 2 ounces of cocaine. Mitchell put onno evidence and argued the only reliable evidenceshowed she had sold only 2 ounces of cocaine. Thefederal district court ruled, as the result of herplea, that Mitchell had no right to remain silentabout the crime's detail, found thecodefendants' testimony put her over the 5kilogram threshold thus mandating the 10-year minimumsentence, and noted Mitchell's failure to testifywas a factor in persuading the court to rely on thecodefendants' testimony. After being affirmed bythe Third Circuit Court of Appeals, the United StatesSupreme Court reversed. 526 U.S. at 321, 119 S.Ct.1307. Themajority opinion first held that a guilty plea doesnot waive the self-incriminationPage 1229privilege at sentencing because such proceedings areclearly a part of "any criminal case." 526U.S. at 327, 119 S.Ct. 1307. The opinion further heldthat it is not proper for a sentencing court to drawan adverse inference from a defendant's silencein determining facts relating to the circumstancesand details of the crime. With the sentencing hearingbeing part of the criminal case, the rule againstnegative inferences at trial continues to apply. 526U.S. at 317, 326-30, 119 S.Ct. 1307. The Courtexpressed no opinion as to whether a defendant'ssilence bears upon the determination of a lack ofremorse or an acceptance of responsibility for thecrime to allow a downward adjustment of a sentence.526 U.S. at 330, 119 S.Ct. 1307. The issuewe face is not the extent of the sentence to beentered. There is a great difference between theimposition of a minimum 10-yearprison sentence and the question of the trialcourt's statutorily granted discretion in thedetermination of the terms and conditions of thebeginning of probation. Inour case, Spencer exercised her Fifth Amendmentrights during the preparation of the PSI report, notduring a sentencing hearing. The risk or needsassessment was not conducted for the purpose ofdetermining the facts, circumstances, or details ofthe crime charged. As the trial court pointed out inthis case, if every defendant would exercise his orher Fifth Amendment rights during the PSI preparationand automatically receive the most beneficialassessment as Spencer claims, there would be no pointin doing the risk or needs assessment and its valueto the rehabilitation process and as a tool toprotect the public would be negated. Wedid follow Mitchell in State v.Aikman, 29 Kan.App.2d 1, 4, 26 P.3d 1276 (2001),where the sentencing court used the defendant'srefusal to disavow affiliation with a gang in orderto impose a departure sentence. We held the trialcourt's reliance on a negative inference fromAikman's silence was impermissible underMitchell. 29 Kan.App.2d at 4, 26 P.3d 1276.Our situation is materially different from theAikman case. There, a harsher sentence wasimposed on remand, it involved a departure sentencewithout factors justifying such action. Aswas said in State v. Borders, 255 Kan. 871,886, 879 P.2d 620 (1994): "In considering thesufficiency of a PSI report certain rules have beenrecognized. 'Presentence reports are valuabletools and should be given close attention bysentencing judges to the end that offenders mayreceive fair sentences based on the best availableinformation rather than on inadequate guesswork.'[Citation omitted.]" Borders complained his lackof participation in the PSI process--he initiallyrefused to cooperate and a second interview wasaborted due to administrative complications--deniedhim of a significant right and was violative of dueprocess. Our Supreme Court held: "The defendantcannot refuse to participate in the PSI interviewprocess and then use the failure of an interview as aground for appeal." 255 Kan. at 887, 879 P.2d620. In Kansasbefore the Mitchell decision, we held that"[a] person who has pleaded guilty to a crimebut who has not yet been sentenced [31 Kan.App.2d686]is entitled to exercise the Fifth Amendmentprivilege against compelled testimonialself-incrimination with respect to the crime to whichhe has pleaded guilty." State v. Rucas, 12 Kan.App.2d 68, Syl.¶ , 734 P.2d 673 (1987). Thetrial court recognized this right but correctly heldthat the exercise of such right has consequences. Whenprobation is the presumptive sentence, the trialcourt's rights and obligations under K.S.A.2002Supp. 21-4610(c) come into play, as do the provisionsof K.S.A.2002 Supp. 75-5291(a)(2)(E) which allowscommunity correction services to "any offenderwho is determined to be 'high risk or needs, orboth' by the use of a statewide, mandatory,standardized risk assessment tool or instrumentvalidated for community correction placements."When adequate information is not available, it is noterror for the trial court to place a convicted felonin the high risk status so that the needs of such aparty will be met and the highest services be madeavailable so that probation will mostPage 1230likely be successful and community protection will beachieved. Thetrial court took the correct action based on theinformation available in commencing Spencer'sprobation with community correction services underthe facts and circumstances of this case. Affirmed.