Opinion
111,746.
05-15-2015
STATE of Kansas, Appellee, v. Corliss C. HOWELL, Appellant.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant. Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.
Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Corliss Howell appeals the district court's ruling ordering him to serve his prison sentence for residential burglary after the court revoked his probation. Howell asserts that because the district court did not find that he was a danger to himself or the community and did not find that he had committed a new crime while on probation, the court abused its discretion. He contends he is serving an illegal sentence and therefore can bring this issue to us without first arguing the matter to the district court. We disagree and affirm.
Howell pleads no contest to residential burglary.
The district court sentenced Howell to 27 months in prison for burglary of a residence in 2011. The court suspended the prison sentence and placed him on probation for 24 months. After revoking his probation in 2013, the court imposed a new probation term of 24 months. In 2014, the court revoked his probation again and this time sent him to prison.
The court held the second revocation hearing after Howell's probation officer filed an affidavit stating Howell had failed to report, had failed to update his address, and had admitted to drinking alcohol in violation of his probation. Howell stipulated to the violations and asked the court to reinstate his probation. The district court revoked his probation and ordered him to serve his sentence, finding he had shown he was unlikely to comply with probation conditions, even after serving 45 days in jail after the 2013 probation revocation.
The district court noted this was Howell's second probation revocation and he was unable to comply with the most basic conditions of probation, even after being sanctioned. The court recognized it appeared Howell had struggled with alcohol abuse for many years but held that “if you can't manage conditions of probation then you don't get probation. And you've shown me that you cannot comply with those conditions.” The district court revoked Howell's probation and ordered him to serve the remainder of his sentence. Howell appeals the district court's revocation of his probation and order to serve his sentence. He claims the court erred by not imposing an intermediate sanction as set out in K.S.A.2014 Supp. 22–3716.
Should we address this issue?
Howell admits that he did not raise the K.S.A.2014 Supp. 22–3716 issue before the district court but argues the district court imposed an illegal sentence when it revoked his probation without following the provisions of K.S.A.2014 Supp. 22–3716. He directs this court to K.S.A. 22–3504(1) and asserts he may bring an illegal sentence challenge at any time. The State argues this claim is not properly before this court because Howell did not raise the illegal sentence issue before the district court.
Generally, issues not raised before the district court cannot be raised on appeal. State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007). The Kansas Supreme Court, however, has held an appellate court can correct an illegal sentence at any time under K.S.A. 22–3504(1). State v. Davis, 281 Kan. 169, 175, 130 P.3d 69, cert. denied 549 U.S. 823 (2006). An illegal sentence is (1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in character or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served. State v. Gilbert, 299 Kan. 797, 801, 326 P.3d 1060 (2014).
We must determine if noncompliance with K.S.A.2014 Supp. 22–3716 qualifies as an illegal sentence. K.S.A.2014 Supp. 22–3716 provides the district court with procedural guidelines for dealing with defendants who have violated their probation. Under K.S.A.2014 Supp. 22–3716(b)(3)(A), when the underlying crime is a felony, upon a finding of a violation, a district court may impose sanctions as set forth in K.S.A.2014 Supp. 22–3716(c)(1). Howell specifically argues that his violations were technical in nature and he should have been sanctioned pursuant to the statute rather than being ordered to serve his original sentence.
We do not hold Howell's sentence to be illegal. It is unlikely noncompliance with the probation statute would fall under the “very limited applicability” of K.S.A. 22–3504(1). See State v. Edwards, 281 Kan. 1334, 1336, 135 P.3d 1251 (2006). The Supreme Court specifically stated an illegal sentence for noncompliance with an applicable statutory provision applies only to “the statute defining the crime and assigning the category of punishment to be imposed.” Edwards, 281 Kan. at 1337. Howell was convicted of burglary of a residence and sentenced properly under that statute; therefore, his sentence was not illegal, and this court has no illegal sentence to correct.
Even if K.S.A. 22–3504(1) applied to probation revocations, the district court did not impose an illegal sentence by refusing to sanction Howell before revoking his probation and ordering him to serve his original sentence. The language of K.S.A.2014 Supp. 22–3716(b)(3)(a) says the court “may impose the violation sanctions as provided in subsection (c)(1).” (Emphasis added.) The use of the word may implies the district court has the discretion to impose sanctions rather than revoking probation.
Additionally, under K.S.A.2014 Supp. 22–3716(c)(9), the district court has the authority to revoke a defendant's probation without having previously imposed a sanction 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.” Here, the court found that Howell was not likely to successfully complete probation because even after being ordered to serve 45 days in jail for violations, he still could not complete the “most basic conditions” of probation. The court had the authority to revoke Howell's probation and order him to serve his original sentence and it did so.
Even so, we find no abuse of discretion.
Once there has been evidence of a violation of the conditions on which probation was granted, the decision to revoke probation rests in the sound discretion of the district court. State v. Gumfory, 281 Kan. 1168, Syl. ¶ 1, 135 P.3d 1191 (2006). A court abuses its discretion only if the court's action is (1) arbitrary, fanciful, or unreasonable, i.e., no reasonable person would take the view adopted by the trial court; (2) based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) based on an error of fact, i.e., substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2001), cert. denied 132 S.Ct. 1594.
Howell again argues the district court abused its discretion by exercising its authority within the wrong legal framework. Howell asserts the district court did not have the authority to revoke his probation and order him to serve his original sentence without first sanctioning him pursuant to K.S.A.2014 Supp. 22–3716.
For the reasons discussed above, the district court did not abuse its discretion. The court did have the authority to revoke Howell's probation and order him to serve his sentence. The language of K.S.A.2014 Supp. 22–3716(c)(9) expressly gives the court discretion to revoke probation “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.” In announcing its decision to revoke Howell's probation, the judge said:
“Mr. Howell, reporting to your probation officer and letting them know where you're residing, that's just one of the most basic conditions of an order of assignment, and, you know you have an issue with alcohol, you have for years, according to your criminal history. And I recognize that that is a disease. We see that a lot with people that are before the Court, but if you can't manage conditions of probation then you don't get probation. And you've shown me that you cannot comply with those conditions.”
The district court met the requirements of K.S.A.2014 Supp. 22–3716(c)(9) by finding Howell's welfare would not be served by another sanction. Howell had already violated his probation for not reporting and was ordered to serve 45 days in jail. In just a few months, Howell failed to report again and the court gave him additional time to get into compliance with his probation officer. Not only did he not comply, he failed to appear for his probation violation hearing. The court did not abuse its discretion when it declined to impose sanctions and instead revoke Howell's probation.
Howell also argues the district court abused its discretion because its decision to revoke his probation for consuming alcohol was unreasonable. Although Howell presented mitigating factors to the court in support of his motion to reinstate, the district court articulated reasons why it did not think Howell was a successful candidate to complete probation. In considering all of these circumstances, the district court did not abuse its discretion when it revoked Howell's probation and ordered him to serve his original sentence.
Affirmed.