Opinion
No. 111,110.
2015-02-20
STATE of Kansas, Appellee, v. David A. LANE, Appellant.
Appeal from Sedgwick District Court; Joseph Bribiesca, Judge.Samuel Schirer, of Kansas Appellate Defender Office, for appellant.Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Joseph Bribiesca, Judge.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., ATCHESON, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
David Allen Lane appeals from the judgment of the district court revoking his felony probation and ordering him to serve his underlying prison sentence Lane argues that the district court erred by failing to impose an intermediate sanction pursuant to K.S.A.2013 Supp. 22–3716(c). Factual and Procedural Background
On January 10, 2011, Lane pled guilty to two counts of aggravated assault of a law enforcement officer, a severity level 6 person felony. Lane had a criminal history of A, indicating a presumption of incarceration. Pursuant to a plea agreement, the State agreed to support Lane's motion for a dispositional departure to a nonprison sanction. The district court granted the departure motion, citing Lane's mental health issues and intoxication at the time the crimes were committed, local programs existing to serve Lane's needs, and the victim's willingness to see Lane seek help for his mental health needs. The district court imposed an underlying prison sentence of 46 months and granted probation for 24 months.
On March 8, 2013, the district court held a probation revocation hearing at which Lane stipulated to violating his probation by testing positive for methadone and for failing to attend drug and alcohol treatment as directed, resulting in his discharge from the treatment program. The district court revoked Lane's probation but “reluctantly” accepted the parties' joint recommendation that Lane be reinstated to probation for an additional 12 months under the Residential Community Corrections Program.
On October 31, 2013, the district court held another probation revocation hearing at which Lane again stipulated to violating his probation by testing positive for alcohol, cocaine, and methadone; failing to report to his intensive supervision officer as directed; failing to report or to submit UA's on at least nine separate occasions; and by leaving the Residential Community Corrections Center without permission. Lane requested that he be allowed to enter inpatient treatment, but the State recommended revocation and imposition of the underlying sentence.
The district court noted concerns about the nature of Lane's violations and his apparent unwillingness or inability to conform his behavior to the requirements of probation and proceeded to revoke probation and order service of the underlying prison term. Lane timely appeals from this judgment. Preservation of the Issue
Lane argues for the first time on appeal that the district court erred by ordering him to serve his underlying sentence without first imposing an intermediate sanction under K.S.A.2013 Supp. 22–3716(c). It is conceded that neither party mentioned the graduated sanction framework at the revocation hearing in district court.
As a general rule, issues not raised before the trial court cannot be raised on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). There are several exceptions to this general rule, including the following: (1) The newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the judgment of the trial court may be upheld on appeal despite its reliance on the wrong ground or having assigned a wrong reason for its decision. State v.. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).
Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40) requires an appellant to explain why an issue that was not raised below should be considered for the first time on appeal. Litigants who fail to comply with this rule risk a ruling that the issue is improperly briefed and will be deemed waived or abandoned. State v.. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014) (cautioning future litigants to comply with rule).
In State v. Klima, No. 110,660, 2014 WL 3843473, at *2–3 (Kan.App.2014) (unpublished opinion), petition for rev. filed August 29, 2014, a panel of this court found that a challenge to a district court's purported failure to implement the graduated sanction framework in K.S.A.2013 Supp. 22–3716(c) was not properly raised on appeal because it was not first presented to the district court. In that case, Klima did not acknowledge his failure to raise the argument below, nor did he assert any of the exceptions to the general rule preventing him from raising the issue for the first time on appeal. In light of the warning in Williams, 298 Kan. at 1085–86, the panel declined to address the issue on the merits. Klima, 2014 WL 3843473, at *2–3.
Here, Lane acknowledges that this court generally will not review issues raised for the first time on appeal and does not argue that any of the exceptions to that rule apply in his case. Rather, he attempts to circumvent the rule altogether by characterizing his appeal as a challenge to an illegal sentence, which he asserts may be corrected at any time. The State disputes this assertion.
Lane cites State v. McKnight, 292 Kan. 776, 257 P.3d 339 (2011), as the sole authority for his claim that this court may review for the first time on appeal his challenge to the district court's imposition of his underlying sentence. However, McKnight is completely inapposite. In that case, the State filed a motion to correct illegal sentence several months after McKnight was sentenced. The district court conducted a hearing on the matter, found that it had made a mistake in sentencing McKnight, and imposed a modified sentence. McKnight appealed the district court's grant of the State's motion to correct an illegal sentence. So, McKnight actually undermines Lane's argument that this court may review a claim of an illegal sentence for the first time on appeal because the parties in that case actually addressed the issue at the district court level.
There is a more fundamental problem with Lane's attempt to classify his challenge to the revocation of his probation and the order to serve his underlying prison sentence as a challenge to an illegal sentence. An “illegal sentence,” as contemplated by K.S.A. 22–3504(1), is a sentence imposed by a court without jurisdiction; a sentence that does not conform to the statutory provision, either in the character or the term of authorized punishment; or a sentence that is ambiguous with respect to the time and manner in which it is to be served. State v. Taylor, 299 Kan. 5, 8, 319 P.3d 1256 (2014). Our Supreme Court has held that K.S.A. 22–3504(1) has very limited applicability. Makthepharak v. State, 298 Kan. 573, 581, 314 P.3d 876 (2013).
Lane is not actually challenging the legality of his underlying sentence. Rather, he is objecting to the term of his probation, which would not fall within the Supreme Court's definition of a sentence. As explained in State v. Simmons, 50 Kan.App.2d 448, Syl. ¶ 7, 329 P.3d 523 (2014), petition for rev. filed July 25, 2014:
“Ordinarily, in a legal sense, ‘sentence’ is synonymous with ‘judgment’ and denotes the action of a court of criminal jurisdiction formally declaring to the defendant the legal consequences of the guilt which he or she has confessed or of which he or she has been convicted.”
Lane did not properly raise his claim of an illegal sentence at the district court level; and even if he had, the imposition of his underlying prison sentence after his probation was revoked does not fit within our Supreme Court's narrow definition of a sentence.
All this being said, however, the applicability of K.S.A.2013 Supp 22–3716(c) under the circumstances of this case involves only a question of law arising on proved or admitted facts and is finally determinative of the issue. Further, a consideration of the issue presented will serve the ends of justice by effectuating a consistent interpretation of the legislative intent expressed in the statute. We will therefore address the merits of Lane's argument that the district court erred by ordering him to serve his underlying sentence without first considering the intermediate sanctions set forth in K.S.A.2013 Supp. 22–3716(c)(1)(C) or (D).
Since the parties filed their briefs in this case, a panel of this court issued an opinion in State v. Kurtz, 51 Kan.App.2d ––––, 340 P.3d 509 (Kan.App.2014). After analyzing the legislative history of the statute, that panel determined that K.S.A.2013 Supp. 22–3716 applied to probation violations that occurred after July 1, 2013:
“The plain language of Senate Substituted for House Bill 2448—which clearly states the legislature's intent—now tells this court that the amendment was meant to control the disposition of probation violations that occurred after July 1, 2013, regardless of when a defendant was sentenced. The legislature has therefore clarified that the date that controls the law that applies to the imposition of sanctions for violating probation is the law that existed when a defendant violated probation, not the law that existed when the defendant committed the underlying crime ... nor the law in effect when the probation hearing occurred.” 340 P.3d at 514.
The warrant prepared for Lane's arrest and the district court's journal entry indicate that all of the violations heard and determined on October 31, 2013, had occurred between August 9, 2013, and October 1, 2013. Thus, K.S.A.2013 Supp 22–3716(c) controls the disposition of those violations. The district court never imposed any of the sanctions pursuant to subsections (c)(1)(C) or (c)(1)(D), which are prerequisite before probation can be revoked under subsection (c)(1)(E) and the underlying sentence imposed.
The statute makes no distinction between presumed nonprison sanctions imposed pursuant to sentencing guidelines and discretionary nonprison sanctions granted pursuant to dispositional departures from presumed prison sentences.
K.S.A.2013 Supp. 22–3716(c)(9) does provide for two exceptions to the general rule of subsection (c)(1)(E):
“(9) The court may revoke the probation, assignment to a community correctional services program, suspension of sentence of nonprison sanction of an offender pursuant to subsection (c)(1)(E) without having previously imposed a sanction pursuant to subsection (c)(1)(B), (c)(1)(C) or (c)(1)(D) if the court finds and sets forth with particularity the reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the offender will not be served by such sanction.”
The relatively brief remarks made by the district court at Lane's revocation hearing are certainly reminiscent of the type of reasoning customarily and historically relied upon by district courts in exercising their discretion to revoke the privilege of probation. However, such discretion is now circumscribed by the requirements of the statute. The court here did not explicitly address the issues of how members of the public would be jeopardized if Lane remained on probation, nor was there any reference to how Lane's welfare would not be served by imposition of the intermediate sanctions. Without sufficient findings to invoke the section K.S.A.2013 Supp. 22–3716(c)(9) exceptions, the district court lacked authority to impose the underlying prison term.
To rectify the situation, we vacate the revocation of Lane's probation and remand the case to the district court for a new dispositional hearing. At that hearing, the district court should either impose intermediate sanctions authorized by K.S.A.2013 Supp. 22–3716(c)(1) or, in the alternative, set forth with particularity its reasons for finding that the safety of the members of the public would be jeopardized or that Lane's welfare would not be served by additional intermediate sanctions.
Vacated and remanded with directions.