Opinion
111,781.
07-24-2015
STATE of Kansas, Appellee, v. Randall BRADLEY, Appellant.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Christina M. Kerls, 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 GREEN, P.J., STANDRIDGE and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Randall Bradley appeals the district court's decision revoking his probation and ordering him to serve a 40–month sentence. He argues, for the first time on appeal, that the district court improperly failed to impose an intermediate sanction under K.S.A.2013 Supp. 22–3716(c). Bradley also seeks an order nunc pro tunc to correct the journal entry of probation revocation because the journal entry did not accurately reflect the findings of the district court. Because Bradley did not raise his entitlement to an intermediate sanction before the district court, and because an amended journal entry was filed by the State correcting the probation revocation journal entry, making the issue moot, we dismiss the appeal.
Factual and Procedural Background
In October 2012 Bradley pled guilty to an offender registration violation and was sentenced to 24 months' probation with an underlying 46–month prison term. Just over a year later, in December 2013, a warrant was issued alleging Bradley violated the terms and conditions of his probation by failing to report to his probation officer in November 2013. Subsequently, the State moved to revoke Bradley's probation.
An evidentiary hearing was held, and the district court found that Bradley violated his probation by failing to report to his probation officer. The district court revoked Bradley's probation and ordered him to serve a modified sentence of 40 months. However, the original journal entry stated the district court revoked Bradley's probation and imposed a 40–month sentence based upon Bradley's failure to report and his new offender registration violation, as opposed to only the violation of failure to report.
Bradley timely appeals.
Typically, an abuse of discretion standard is used to review a district court's decision to revoke probation. See State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). To the extent that Bradley's arguments involve statutory interpretation, our review is de novo. See State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014).
As a preliminary matter, the State argues Bradley's claim for an intermediate sanction under K.S.A.2013 Supp. 22–3716(c) was not presented to the district court for its consideration. It is well established that an issue not raised before the district court is not available for appellate review. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). However,
“[t]here are three exceptions to the rule: (1) The newly asserted theory involves only a question of law arising on proved or admitted facts and is 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 district court is right for the wrong reason.
[Citations omitted.]” State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).
Under Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40), if an issue was not raised in the district court, “there must be an explanation why the issue is properly before the court.” Bradley's brief does not address whether his claim was presented before the district court nor does it argue why his allegation of error should be considered for the first time on appeal. Our Supreme Court has warned that a failure to abide by this rule is fatal to a claim:
“[W]e are unwilling to ignore the rule's plain language. Future litigants should consider this a warning and comply with Rule 6.02(a)(5) by explaining why an issue is properly before the court if it was not raised below—or risk a ruling that an issue improperly briefed will be deemed waived or abandoned. [Citations omitted.]” State v. Williams, 298 Kan. 1075, 1085–86, 319 P.3d 528 (2014).
Recently, another panel of this court decided that a challenge to a district court's purported failure to follow the new intermediate sanction criteria was not properly before it because the issue was not first presented to the district court and the appellant failed to explain why the court should address the issue for the first time on appeal. State v. Klima, No. 110,660, 2014 WL 3843473, at *2–3 (Kan.App.2014) (unpublished opinion), petition for rev. filed August 29, 2014.
However, the panel in State v. Lane, No. 111,110, 2015 WL 802739, at *1, 4 (Kan.App.2015) (unpublished opinion), vacated and remanded a district court's decision even though the defendant argued for the first time on appeal that the district court failed to impose an intermediate sanction under K.S.A.2013 Supp. 22–3716(c). Unlike in Klima or in the present case, the defendant in Lane attempted to circumvent the rule prohibiting issues to be raised for the first time on appeal by arguing his sentence was illegal. While the panel rejected that argument, it considered the merits anyway.
In this case, neither Bradley nor the State mentioned K.S.A.2013 Supp. 22–3716(c) at the probation revocation hearing. Bradley asked to be put back on probation while the State asked for Bradley to serve his underlying sentence. Neither party mentioned the graduated sanction framework under K.S.A.2013 Supp. 22–3716(c). Moreover, in his brief, Bradley does not acknowledge his failure to raise the K.S .A.2013 Supp. 22–3716(c) issue before the district court nor does he claim any of the exceptions to the general rule precluding him from raising the argument for the first time on appeal.
Therefore, in light of the requirements of Supreme Court Rule 6.02(a)(5) and our Supreme Court's admonition in Williams, we decline to address Bradley's claim that he is entitled to an intermediate sanction prior to revocation of his probation.
Finally, with regard to Bradley's request for an order nunc pro tunc to correct the journal entry of probation revocation because the journal entry did not accurately reflect the findings of the district court, as the State filed a corrected journal entry while this matter was on appeal, Bradley's second claim of error is moot.
Appeal dismissed.