Opinion
110,889.
03-13-2015
STATE of Kansas, Appellee, v. Daniel Lee MAYS, Appellant.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Brett H. Richman, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Brett H. Richman, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., ATCHESON, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Daniel Lee Mays appeals his sentence following his conviction of felony theft based upon a shoplifting incident at a JCPenney store at a time when Mays already had at least two theft convictions.
Before sentencing, Mays objected to a misdemeanor theft in Overland Park being included in his criminal history. At the sentencing hearing, the prosecutor provided certified copies of documents related to the Overland Park conviction. Mays objected, claiming the documents did not prove a prior conviction for theft because the complaint, a hearing order, and the sentencing journal entry had a case number that was different from that on the docket sheet and the plea. Mays also argued that an uncertified cover sheet with a sticky note on it explaining the clerical error could not be submitted as evidence. The district court overruled Mays' objections and found that the State had proven the conviction by a preponderance of the evidence.
The State requested the standard 14 months' imprisonment, arguing that Mays had committed this crime while on probation. Mays requested probation, arguing that he had a substance abuse issue and Kansas law allows a judge to sentence a defendant to probation if that defendant is amenable to treatment. The district court followed the State's recommendation and sentenced Mays to 14 months' imprisonment with 12 months' postrelease supervision. The district court also found that Mays had committed this offense while on probation for another offense and, accordingly, ordered the sentence here to run consecutive to his previous sentence. In doing so, the judge stated that he had seen nothing to indicate that Mays would “turn over a new leaf and suddenly become a sober citizen.” The district court then revoked Mays' probation for his prior conviction.
Mays appeals. He argues that the district court should have considered his request for substance abuse treatment in lieu of imprisonment because he testified that he had a substance abuse problem and was on drugs at the time he committed the theft and the States' witnesses testified that he had acted strangely and made odd statements.
Pursuant to K.S.A.2012 Supp. 21–6804(o), the district “court may order an optional nonprison sentence for a defendant to participate in a drug treatment program” following a theft conviction if the district court makes the following findings on the record:
“(1) Substance abuse was an underlying factor in the commission of the crime;
“(2) substance abuse treatment in the community is likely to be more effective than a prison term in reducing the risk of offender recidivism; and
“(3) participation in an intensive substance abuse treatment program will serve community safety interests.”
The language of K.S.A.2012 Supp. 21–6804(o) is clearly discretionary. Mays argued for probation and the judge rejected the request, finding that he had seen nothing to indicate that Mays would “turn over a new leaf and suddenly become a sober citizen.” The judge made none of the findings necessary to place Mays in the drug treatment program under K.S.A.2012 Supp. 21–6804(o).
In any event, Mays was sentenced in accordance with the nondrug grid and received a presumptive sentence. A nondeparture sentence that is within the presumptive sentence for the crime is not reviewable by an appellate court. K.S.A.2012 Supp. 21–6820(c). Accordingly, we lack jurisdiction to review this issue and must dismiss it.
For his second point of error, Mays argues that the State did not prove the prior Overland Park theft convictions by a preponderance of the evidence and therefore could not use it to increase his sentence from a misdemeanor to a felony. He asserts that the court record provided by the State to prove the challenged conviction was not certified, contained mismatched case numbers, and was accompanied with a sticky note written by an unknown person explaining away the mismatched case numbers.
Whether the State has met its burden to prove a prior conviction by a preponderance of the evidence is a question of fact. State v.. Loggins, 40 Kan.App.2d 585, 588, 194 P.3d 31 (2008), rev. denied 289 Kan. 1283 (2009). Our review is limited to determining whether substantial competent evidence supports the trial court's finding. State v. Bailey, 292 Kan. 449, 453, 255 P.3d 19 (2011). Substantial evidence is legal and relevant evidence that a reasonable person would accept as being adequate to support a conclusion. Loggins, 40 Kan.App.2d at 588.
Neither the presentence investigation nor the “suspect” documents offered by the State to prove the Overland Park conviction are included in the record on appeal. Referring to the transcript of the sentencing hearing, the prosecutor informed the district court that defense counsel had been provided with proof of Mays' prior convictions and stated, “[O]n one of them, it was not certified, the one from Overland Park, so I have gotten the same thing now. Now it's certified.” The prosecutor later showed defense counsel the certified copy of the documents.
When the various documents were offered to prove the Overland Park conviction, Mays objected. He asserted that the cover page with the sticky note on it should not have been provided to the court as evidence because it was not a certified copy of anything but rather a request from the State for information. Next, he complained that the case number on the complaint, a hearing order, and the sentencing journal entry was different than that on the docket sheet and the plea. Mays did not contend that the court records were not certified.
The prosecutor responded that the court could consider all evidence it found reliable, and the statute does not require all documentation be certified. The prosecutor included the cover sheet to demonstrate that the municipal court clerk had informed the State that there had been a clerical error on the case number but that all of the documents came from the same file. The prosecutor pointed out that all of the documents were in regard to Mays and a misdemeanor theft, and they demonstrated that Mays pled guilty to the theft charge.
A certified journal entry is the best evidence of a prior conviction. State v. Presha, 27 Kan.App.2d 645, 646–47, 8 P.3d 14, rev. denied 269 Kan. 939 (2000). But a journal entry is not the only permissible evidence the State can use to prove a defendant's criminal history. 27 Kan.App.2d at 647–48.
Here, according to the record of the sentencing hearing, the prosecutor produced a certified copy of Mays' journal entry from his Overland Park theft conviction. Though the record indicates that other certified court documents produced in conjunction with the journal entry contained a different case number from that on the journal entry, this discrepancy does not negate the fact that the journal entry, standing alone, is solid proof of Mays' conviction in the Overland Park case. Further, the only document that was not certified but was included as evidence supporting the proof of conviction was a cover sheet with a sticky note from a court clerk explaining the clerical error of the varying case numbers. This document was not proof of the conviction itself but was relevant to explaining the mismatched case numbers.
Because substantial competent evidence supports the district court's finding that Mays' second prior theft conviction had been proven by the State by a preponderance of the evidence, the district court did not err when it sentenced Mays for felony theft as opposed to misdemeanor theft.
Affirmed in part and dismissed in part.