Opinion
111,784.
05-08-2015
STATE of Kansas, Appellee, v. Anthony RICHARDSON, Appellant.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Lydia Krebs, 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 HILL, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Anthony Richardson asks us to overturn the district court's order sending him to prison instead of imposing intermediate sanctions when his probation was revoked. When it has revoked probation, in order to bypass the intermediate sanction requirement found in the law, the district court must find the offender either committed a new crime when it has revoked probation or the offender absconded from supervision. Or, the district court must set forth with particularity the reasons for finding that the public's safety will be jeopardized or that the offender's welfare will not be served by imposing an intermediate sanction. K.S.A.2014 Supp. 22–3716(c)(8) and (9). The record on appeal does not reveal that Richardson either committed a new crime or absconded from supervision. The district court made no specific findings about Richardson's welfare or the public's safety. Therefore, we set aside the order sending Richardson to serve his prison sentence and remand the case to the district court for specific findings or imposition of an intermediate sanction as required by law.
Richardson's probation was properly revoked.
Richardson pled guilty to one count of possession of a controlled substance, one count of possession of paraphernalia for use, one count of driving while his license was suspended or canceled, and one count of failing to stop at a stop light. The district court sentenced Richardson to 34 months' imprisonment with 12 months' postrelease supervision. The court suspended the sentence and ordered Richardson to serve 12 months' probation.
His probation was first revoked in February 2013. During the first revocation hearing, the district court heard testimony regarding Richardson's drug addiction. The court reinstated Richardson's probation and ordered him to remain in jail until a bed at the drug treatment facility was available. The district court warned Richardson there would be “zero tolerance” for missing a drug and alcohol treatment appointment. The district court stated,
“Because of your history, at least in this past prior probation violation, missing nine out of fourteen drug and alcohol appointments, I am going to designate your case zero tolerance on that aspect. For any missed sessions of drug and alcohol treatment ... unless you have some ironclad reason to miss that appointment, if you miss a drug and alcohol treatment appointment, you're going to be going to prison for the balance of 34 months.”
The State sought revocation of Richardson's probation again in December 2013. The State alleged:
“1. The defendant was evicted from his [sic ] Oxford House on or about 12/16/13 and did not report it to his ISO within 24 hours.
“2. The defendant submitted a UA on 12/9/13 which tested positive for Cannabinoids and Cocaine. It was confirmed positive for Cannabinoids and Cocaine on 12/20/13.
“3. The defendant is a suspect in LEA Case # 13C076400 and is currently being investigated for Unlawful Possession of Narcotics.”
At his probation revocation hearing in January 2014, Richardson waived his right to an evidentiary hearing and stipulated to the probation violations. When revoking Richardson's probation, the district court stated the following:
“What I am going to consider is that I gave you the option of choosing 28 months back on February 1st at one of your probation violation hearings. You chose Residential and Oxford House instead.
“Distinguishing you and ... Mr. Woodward, at least Mr. Woodward raised the issue that he has a goal to work for, and that's his wife and child.
“That's some apparent motivation that might help him on his course. I don't know whether it will or not, but at least it is something. You've given me nothing along those lines. You have given me a much shorter time program and a more consistent violation time frame.”
The district court then sent Richardson to prison to serve his original sentence.
The issue of intermediate sanctions is properly before us.
For the first time on appeal, Richardson argues the district court erred by failing to comply with K.S.A.2013 Supp. 22–3716. In his view, the law required the court to impose an intermediate sanction upon him instead of sending him to prison. The State argues Richardson failed to raise this issue below, and it is not properly before this court.
Issues not raised before the trial court cannot be raised on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). There are several exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal, including the following: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the judgment of the trial court may be upheld on appeal despite its reliance on the wrong ground or having assigned a wrong reason for its decision. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40) requires an appellant to explain why an issue that was not raised below should be considered for the first time on appeal. Litigants who fail to comply with this rule risk a ruling that the issue is improperly briefed and will be deemed waived or abandoned. See State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014). In Williams, the court cautioned future litigants to comply with the rule.
Richardson has complied with Rule 6.02(a)(5). He now argues that the newly asserted theory involves only a question of law arising on proved or admitted facts and it is determinative of the case. This issue is properly raised and we will consider it.
Basically, Richardson argues the district court erred by failing to comply with K.S.A.2013 Supp. 22–3716. The State opposes, contending Richardson is not entitled to receive intermediate sanctions provided by K.S.A.2013 Supp. 22–3716 because the date of conviction of his crimes occurred prior to recent legislative changes in the statute. The State argues K.S.A.2013 Supp. 22–3716 is a substantive criminal statute, not procedural, and therefore it cannot be applied retroactively.
Recent amendments to the law control this issue. The legislature clarified its intent regarding the application of this law in 2014. K.S.A.2014 Supp. 22–3716(c)(12) provides:
“The violation sanctions provided in this subsection shall apply to any violation of conditions of release or assignment or a nonprison sanction occurring on and after July 1, 2013, regardless of when the offender was sentenced for the original crime or committed the original crime for which sentenced. ” (Emphasis added.)
The language of this statute is plain and unambiguous; the date of the probation violation controls—not the date the crime was committed. Richardson's probation violations occurred after July 1, 2013. Therefore, Richardson is correct and the district court erred by failing to apply the appropriate statutory requirements. The district court failed to impose an intermediate sanction prior to revoking Richardson's probation.
Clearly, the district court's comments here were general in nature and lacking detail. The district court made no mention of public safety or Richardson's own welfare. The district court failed to impose the required intermediate sanction and failed to set forth with particularity why it did not do so. The district court erred by ordering Richardson to serve his original sentence without first imposing intermediate sanctions.
We reverse the district court's order sending Richardson to prison to serve his sentence and remand for further proceedings to make the statutory findings or impose an intermediate sanction.