Opinion
111,553.
06-05-2015
STATE of Kansas, Appellee, v. Randal C. DAVIS, Appellant.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant. Kevin M. Hill, county attorney, and Derek Schmidt, attorney general, for appellee.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant.
Kevin M. Hill, county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., HILL and ATCHESON, JJ.
MEMORANDUM OPINION
LEBEN, J.
Randal Davis received probation after he pled no contest to battery on a law-enforcement officer and battery on a corrections officer. Davis violated several of his probation conditions when he left the state without permission, failed to report his location to his probation officer within 24 hours, and was arrested for a DUI in Nebraska. As a result, the judge revoked Davis' probation and ordered him to serve a modified sentence of 36 months in prison.
On appeal, Davis argues that the district court should have followed K.S.A.2013 Supp. 22–3716(c), a statute generally requiring courts to impose an intermediate penalty before sending a defendant to prison for a probation violation. But Davis neither cited this statute to the district court nor asked it to impose an intermediate sanction. Generally, an issue must be raised in the trial court before it may be raised on appeal, and Davis has provided no argument about why he may raise this issue for the first time on appeal. We conclude that the issue has not been properly raised for appellate review. See State v. Klima, No. 110,660, 2014 WL 3843473, at *2–3 (Kan.App.2014) (unpublished opinion) (declining to consider the district court's failure to impose intermediate sanctions under K.S.A.2013 Supp. 22–3716 [c] when raised for the first time on appeal), petition for rev. filed August 29, 2014. Even if we were to consider Davis' argument on its merits, we note that the amended statute he argues applies to this case didn't take effect until July 1, 2013, after Davis had violated his probation. In a case similar to Davis', our court concluded that the amended statute did not apply. See State v. Kurtz, 51 Kan.App.2d 50, Syl. ¶ 7, 340 P.3d 509 (2014), petition for rev. filed March 26, 2015. We affirm the district court's judgment.
Factual and Procedural Background
In October 2009, Davis pled no contest to battery on a law-enforcement officer, a severity–level–5 person felony, and battery on a corrections officer, a severity–level–7 person felony. The district court sentenced him to probation for 36 months with an underlying 48–month prison sentence—36 months for battery on a law-enforcement officer and 12 months for battery against a corrections officer.
In August 2011, Davis stipulated that he had violated the terms of his probation by being charged with new crimes, purchasing and using marijuana, quitting his job before finding other employment, failing to take his medication, failing to attend his mental-health appointments, and failing to pay his court costs. Davis asked the district court to reinstate his probation or to reduce his sentence if it would not reinstate probation. The court granted his request and extended his probation for 36 months.
On March 25, 2013, Davis again stipulated to violating his probation by failing to report to his probation officer and failing to tell the officer that he had quit his job and changed residences. Davis asked the court to reinstate his probation. The court again reinstated his probation and extended it for 36 months. In response to the court's questioning, Davis said that he understood that he would go to prison for 48 months if he “screw[ed] up again.”
But in April 2013, Davis' probation officer filed an affidavit alleging that Davis had violated the conditions of probation a third time. Several months later, the court held an evidentiary hearing to determine whether he had. The court found that he had violated his probation in April 2013 by being arrested for a DUI in Nebraska, leaving the state without permission, and failing to report his location to his probation officer within 24 hours. Davis requested that the court reinstate his probation on the condition that he enter a treatment center or long-term-care facility or, in the alternative, modify his underlying sentence. The district court did not grant his request for probation but did impose a modified sentence. The court made his prison sentences concurrent rather than consecutive; the new controlling sentence was 36 months.
Davis has appealed to this court.
Analysis
A district court's decision to revoke probation must be based on a factual finding that the defendant has violated a condition of probation. Once a violation has been established, the decision to revoke probation has traditionally been within the discretion of the district court. See State v. Skolaut, 286 Kan. 219, 227–28, 182 P.3d 1231 (2008) ; State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). A district court abuses its discretion when it bases its decision on an error of fact or law or when its decision is so unreasonable that no reasonable person would agree with it. State v. Beaman, 295 Kan. 853, 865, 286 P.3d 876 (2012).
On appeal, Davis argues that the district court abused its discretion in revoking his probation by making an error of law. He says that under a 2013 amendment to the probation-revocation statute, the district court was required to either impose intermediate sanctions or make a finding that the safety of the public would be jeopardized or that Davis' welfare would not be served by reinstating probation. K.S.A.2013 Supp. 22–3716(c)(1), (4). But, as the State notes, Davis did not raise this issue in the district court; he asked the district court to either reinstate his probation or modify his underlying sentence. Before the district court, Davis' attorney never mentioned a statutory requirement that the court impose an intermediate sanction before ordering Davis to serve his prison sentence.
We were faced with the same situation in State v. Mohr, No. 111,342, 2015 WL 1124538, at *2–3 (Kan.App.2015) (unpublished opinion), petition for rev. filed April 6, 2015, and declined to consider the defendant's arguments about intermediate sanctions because he had not explained why this court should consider them for the first time on appeal. In Mohr, we also noted that this court had rejected a similar argument about intermediate sanctions in Kurtz, 51 Kan.App.2d 50, Syl. ¶ 7, 340 P.3d 509 :
“Generally, a theory not asserted before the district court cannot be raised for the first time on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). Although there are exceptions to that rule, see State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014), Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 41) requires that the party raising such an issue explain why it should be considered for the first time on appeal: ‘If the issue was not raised below, there must be an explanation why the issue is properly before the court.’
“In a case decided in March 2014, our Supreme Court enforced that rule and deemed an issue waived or abandoned when a party failed to explain in its appellate brief why the issue—not raised in the trial court—should be considered on appeal. State v. Williams, 298 Kan. 1075, 1085–86, 319 P.3d 528 (2014). The court said it was ‘unwilling to ignore the rule's plain language’ and warned that ‘[f]uture 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.’ 298 Kan. at 1085–86, 319 P.3d 528. In Mohr's appellate brief, filed more than 6 months after the Williams decision, Mohr has not addressed any of the exceptions to the rule that issues may not first be raised on appeal; nor has he explained why this court should consider intermediate sanctions for the first time on appeal. Accordingly, we decline to consider the issue. See Klima, 2014 WL 3843473, at *2–3.
“Even if the issue were properly before us, we note that our court has rejected a similar argument in Kurtz. Like Mohr, the defendant in Kurtz had violated his probation before July 1, 2013. The statutory amendment Mohr cites, defining the consequences for probation violations, K.S.A.2013 Supp. 22–3716, became effective July 1, 2013. L.2013, ch. 76, sec. 5. The amendment provided graduated sanctions (from a few days to 180 days in jail) for the district court to impose before it orders that a probationer who violates the terms of his or her probation serve his or her underlying prison sentence. See K.S.A.2013 Supp. 22–3716(c) ; State v. McGill, 51 Kan.App.2d 92, Syl. ¶¶ 1–2, 340 P.3d 515 (2015). In Kurtz, after considering the language of the statutory amendment and the rules governing whether a statutory amendment is applied only prospectively or may have some retroactive application, our court found that it did not apply to defendants who had violated their probation before the amendment's effective date, July 1, 2013. 51 Kan.App.2d 50, 340 P.3d 509, Syl. 6–7; accord McGill, 51 Kan.App.2d 92, 340 P.3d 515, Syl. 1–2.” Mohr, 2015 WL 1124538, at *2–3.
We decline to consider Davis' arguments about intermediate sanctions because he filed his appellate brief more than 5 months after the Supreme Court's decision in Williams and has also not explained why we should consider intermediate sanctions for the first time on appeal.
Davis does not contest the modified sentence that the district court imposed. We affirm the district court's judgment.
* * *
ATCHESON, J., concurring.
I concur in the result affirming the revocation of Defendant Randal Davis' probation. I do so on the merits. Because the Brown County District Court revoked the probation for violations that occurred before July 1, 2013, Davis was not statutorily entitled to consideration for any of the intermediate sanctions provided in K.S.A.2013 Supp. 22–3716(c). See K.S.A.2014 Supp. 22–3716(c)(12) (intermediate sanctions apply to probation violations “occurring on or after July 1, 2013”).