Opinion
No. 108,582.
2013-08-9
STATE of Kansas, Appellee, v. Edwin CURTIS, Appellant.
Appeal from Butler District Court; David A. Ricke, Judge. Christopher S. O'Hara, of O'Hara & O'Hara LLC, of Wichita, for appellant. Amber R. Norris, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Butler District Court; David A. Ricke, Judge.
Christopher S. O'Hara, of O'Hara & O'Hara LLC, of Wichita, for appellant. Amber R. Norris, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., HILL, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Edwin Curtis—who was incarcerated in a county jail following multiple misdemeanor convictions—filed multiple motions for parole under K.S.A.2011 Supp. 21–6608(b). The district judge refused to grant Curtis parole, and Curtis appealed to this court. On appeal, Curtis contends that the district judge abused his discretion and failed to recognize his legal authority. Based on our review of the record, we find no abuse of discretion and we conclude that the district judge appropriately followed Kansas law. Accordingly, we affirm the district judge's decision.
Facts
On July 10, 2009, Curtis pleaded guilty to five misdemeanor counts of violating a protective order in violation of K.S.A. 21–3843(a)(4). The district judge placed Curtis on probation for a period of 12 months, with underlying consecutive sentences of 12 months incarceration in jail on each count. Less than a year later, the district judge revoked Curtis' probation on July 9, 2010, after he tested positive for illegal drugs and was convicted of violating a city ordinance in the Wichita Municipal Court. At that time, the district judge ordered Curtis to serve the balance of his sentence of 60 months in the county jail.
On December 6, 2010, Curtis filed a motion for parole that was denied by the district judge. Thereafter, on August 30, 2011, Curtis filed a motion to modify his sentence. This motion was also denied by the district judge. Additionally, the district judge denied Curtis' request for parole and work release. On February 15, 2012, Curtis filed another motion for parole, which is the subject of this appeal.
At a hearing held on March 14, 2012, the district judge stated, “[T]his court recognized at least two times before and recognizes as part of the record today that it does have the authority to grant an order of parole.” Notwithstanding this acknowledgement, the district judge concluded that “the safety and security of certain women and the community at large [was] best served by [Curtis] not being granted parole.” Thus, the district judge denied Curtis' motion for parole.
At the hearing on the motion for parole, the district judge also considered a renewed request by Curtis for a modification of his sentence. The district judge found that while he had jurisdiction to grant parole to anyone convicted of a misdemeanor and sentenced to the county jail, he did not believe he had the legal authority to “literally modify” Curtis' sentence. The district judge also found that “even if this court were convinced that legal authority existed to literally modify [Curtis'] sentence to shorten it to a lesser time, the court would deem that to be inappropriate as a matter of discretion.” Furthermore, the district judge concluded that Curtis' sentence was a “legal, proper and reasonable sentence given all the facts and circumstances in this case.”
Analysis
On appeal, Curtis contends that the district judge abused his discretion by refusing to grant his motion for parole. A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. See State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012). An abuse of discretion occurs if discretion is guided by an erroneous legal conclusion or goes outside the framework of or fails to consider proper statutory limitations or legal standards. See State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009).
Sentencing, and the authority to modify a sentence, is strictly statutory. Except to correct arithmetic or clerical errors, a Kansas district court has no authority to modify a legally imposed sentence. See State v. Anthony, 274 Kan. 998, 999, 1001, 58 P.3d 742 (2002). We have recognized one exception to this rule—a district court has authority to modify a sentence upon revocation of probation. See K.S.A.2012 Supp. 22–3716; State v. Ardry, 295 Kan. 733, 735, 286 P.3d 207 (2012). But this statutory exception does not apply to Curtis' case. Here, the district court revoked Curtis' probation in July 2010 and did not modify his sentence. Curtis has pointed to no statutory authority authorizing the district court to modify his sentence at a later date. See State v. Berriozabal, 291 Kan. 568, 579, 594, 243 P.3d 352 (2010) (noting that the failure to support a point with pertinent authority amounts to abandonment of the issue).
It is undisputed that a district judge has the authority to grant parole to a misdemeanant incarcerated in a county jail. See K.S.A.2011 Supp. 21–6608(b). Moreover, the district judge in the present case expressly recognized that he had this authority. Nevertheless, he chose not to exercise his authority under the facts and circumstances of this case.
Curtis argues that K.S.A.2011 Supp. 21–6603(e)—which defines the term “parole”—grants a district judge the authority to modify a sentence. We disagree. Rather, the statute simply grants a district judge the authority to place conditions on a person granted parole from incarceration in a county jail prior to the expiration of the sentence.
Regardless, the district judge concluded in the present case that even if he did have authority to modify Curtis' sentence, he would not do so. As reflected in the journal entry entered by the district judge on April 25, 2012, he found that Curtis continued to be a danger to the community. See State v. Glover, 243 Kan. 689, 691–92, 763 P.2d 605 (1988) (no abuse of discretion despite judge's erroneous statement about eligibility for parole because it had no effect on the decision). We find the district judge's conclusion to be reasonable based on Curtis' violation of the terms of his probation, including his municipal court conviction for interference of phone service—domestic violence.
Accordingly, we conclude that the district judge did not abuse his discretion in denying Curtis' motion for parole. The district judge reasonably found that the best interests of the public's safety—as well as the safety of the particular women he had victimized—would be served by requiring him to remain in the county jail for the full term of his sentence. See K.S.A.2011 Supp. 21–6601. Finally, although we conclude that the district judge understood Kansas law relating to parole and modification of sentences, any confusion would have been harmless under the circumstances presented.
Affirmed.