Opinion
Nos. 109,158 109,159.
2014-09-19
STATE of Kansas, Appellee, v. Tyrone INGRAM, Appellant.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant.Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., Leben and Atcheson, JJ.
MEMORANDUM OPINION
PER CURIAM.
Tyrone Ingram pled guilty to multiple criminal charges in two consolidated cases and received probation with an underlying prison sentence. After Ingram violated his probation, the district court revoked it and ordered him to serve the underlying sentence. At the hearing, Ingram asked the district court to modify his sentence, but the district court denied the request. Ingram filed two subsequent motions to modify his sentence, and the district court denied both motions. Ingram appeals. For the reasons explained herein, we affirm the district court's judgment.
We will briefly review the procedural history that led to this appeal. On October 7, 2010, Ingram pled guilty to multiple charges in case numbers 10CR2717 and 10CR2779. The cases were consolidated in district court. At the sentencing hearing on November 24, 2010, the district court imposed a controlling sentence of 106 months' imprisonment and placed Ingram on probation for 36 months. In a nunc pro tunc order, the district court reduced the controlling sentence to 76 months' imprisonment based on the “double rule” pursuant to K.S.A. 21–4720(b)(4).
On February 3, 2011, the district court held a probation revocation hearing, at which Ingram admitted to violating multiple conditions of his probation. The district court revoked Ingram's probation and ordered him to serve his underlying prison sentence. At the hearing, Ingram asked the district court to modify his underlying sentence, but the district court denied the request.
On July 13, 2011, Ingram filed a pro se notice of appeal with the district court stating that he had asked his attorney to file an appeal but his attorney had failed to do so. Ingram did not specify the decision from which he wanted to appeal, but he asserted that he fell under one of the accepted exceptions to the requirement of a timely notice of appeal because his attorney failed to perfect his appeal and because he had not been fully advised of his right to appeal. See State v. Ortiz, 230 Kan. 733, 735–36, 640 P.2d 1255 (1982). In December 2011, the district court dismissed the appeal for failure to docket.
Meanwhile, on August 10, 2011, Ingram filed a pleading entitled “pro se sentence modification” in 10CR2779 and another case, 11CR151. The State filed a response to this pleading, arguing that because the original sentences in the two cases were lawfully imposed, the district court had no jurisdiction to modify the sentences.
On September 2, 2011, the district court held a hearing on the motion, at which Ingram did not appear in person and was not represented by counsel. The district court stated that it could not modify Ingram's felony sentences but that it could modify his sentence for misdemeanor theft in 11CR151. The district court ordered the misdemeanor sentence in 11CR151 to run concurrently with the other sentences but denied any other request for modification, stating that “the Court has no jurisdiction.”
On December 14, 2011, Ingram filed a second motion entitled “pro se sentence modification.” This motion was nearly identical to the motion Ingram had filed in August 2011, except this motion was filed in all three cases: 10CR2717, 10CR2779, and 11CR151. The State again filed a response, arguing that the district court had no jurisdiction to modify the sentences. On January 6, 2012, the district court filed a minute order denying the motion and stating: “The court no longer has jurisdiction to modify sentence. The court chose not to do so at the time probation was revoked.”
On October 25, 2012, Ingram filed another pro se notice of appeal with the district court in 10CR2717 and 10CR2779. This notice of appeal, like Ingram's first pro se notice of appeal, did not specify the decision from which Ingram wanted to appeal. The notice alleged that Ingram's attorney had failed to file a notice of appeal even though Ingram had asked the attorney to do so. Ingram asserted that his appeal should be allowed to proceed under the Ortiz exceptions.
On October 29, 2012, the district court appointed counsel to represent Ingram on his appeals of 10CR2717 and 10CR2779. On February 4, 2013, this court ordered the parties to show cause (1) why the cases should not be consolidated and (2) why the appeals should not be dismissed for lack of jurisdiction. Regarding jurisdiction, this court's order stated: “The record indicates the journal entry denying sentence modification was filed on January 6, 2012, but the notice of appeal was not filed until October 25, 2012, beyond the 30[-]day limitation of K.S.A.2012 Supp. 60–2103(a).”
In an order dated March 1, 2013, this court noted the parties' responses to the show cause order and remanded to the district court to determine whether the Ortiz exceptions applied. The district court held a hearing on April 26, 2013, and found that Ingram had “the right to appeal from the original sentencing and the denial of the motion to modify.” The district court's order, filed as a minute order, did not specify which motion to modify Ingram had a right to appeal. After receiving the district court's ruling, this court consolidated the two cases and retained the appeals.
Ingram's appellate brief is confusing and it is difficult to figure out which district court orders he is trying to appeal. Ingram's brief raises various arguments, including (1) the district court erred in refusing to modify his sentence at the probation revocation hearing; (2) the district court erred in refusing to grant one of the later motions to modify sentence; and (3) the district court abused its discretion in revoking Ingram's probation.
Ingram first argues that the district court erred in refusing to modify his sentence at the probation revocation hearing on February 3, 2011. “A trial court's ruling on a sentence modification motion is subject to an abuse of discretion standard of review. [Citation omitted.]” State v. Harris, 262 Kan. 778, 783, 942 P.2d 31 (1997). “ ‘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.’ [Citation omitted.]” State v. Hilt, 299 Kan. 176, 186, 322 P.3d 367 (2014).
Ingram cites State v. Hall, 30 Kan.App.2d 669, 46 P.3d 561 (2002), to support his argument that the district court erred in refusing to modify his sentence at the probation revocation hearing. In Hall, the district court stated at the defendant's probation revocation hearing that the defendant would have to serve the full underlying prison sentence because the district court could not legally modify the sentence. 30 Kan.App.2d at 669. This court concluded that the district court erred because K.S.A.2001 Supp. 22–3716(b) allowed a sentencing court, upon revocation of probation, to impose the underlying sentence or any lesser sentence. 30 Kan.App.2d at 670; see State v. Cisneros, 42 Kan.App.2d 376, 379–81, 212 P.3d 246 (2009).
Hall is easily distinguishable from Ingram's case. Here, at Ingram's probation revocation hearing, the district court never stated that it did not have jurisdiction or authority to modify Ingram's sentence. Ingram asked the district court to consider modifying his underlying sentence at the hearing, but the district court declined to do so. The district court referred to the fact that Ingram's controlling sentence already had been reduced pursuant to K.S.A. 21–4720(b)(4). This decision was not an abuse of discretion. Ingram admitted that he had violated his probation by failing to report a change of address, repeatedly missing curfew, testing positive for drugs, failing to report to his supervisor as directed, and failing to attend outpatient drug and alcohol treatment. In light of Ingram's admitted violations and his failure to advance any compelling argument for the district court to modify his sentence, the district court did not abuse its discretion by denying the motion to modify at the probation revocation hearing.
Next, Ingram argues that the district court erred in refusing to grant one of his later motions to modify sentence. After the probation revocation hearing, Ingram filed two separate pro se motions to modify his sentence, and the district court denied each motion. In both instances, the district court found that it no longer had jurisdiction to modify Ingram's felony sentence. Whether jurisdiction exists is a question of law and our review is de novo. State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012).
When a lawful sentence has been imposed under the Kansas Sentencing Guidelines Act, the sentencing court has no jurisdiction to modify that sentence except to correct “arithmetic or clerical errors” pursuant to K.S.A. 21–4721(i). See State v. Miller, 260 Kan. 892, 900, 926 P.2d 652 (1996). As we already have discussed, another statutory exception is found at K.S.A.2010 Supp. 22–3716(b), which allows a sentencing court, upon revocation of probation, to impose the underlying sentence or any lesser sentence. See Hall, 30 Kan.App.2d at 670. However, Ingram's two pro se motions to modify sentence were filed several months after his probation was revoked; thus, K.S.A.2010 Supp. 22–3716(b) was inapplicable to the pro se motions. Once the district court revoked Ingram's probation and ordered him to serve his legal sentence, the district court correctly ruled that it did not have jurisdiction to consider any further requests to modify the sentence. See State v. McKnight, 292 Kan. 776, 779, 257 P.3d 339 (2011).
Finally, in one paragraph of his brief, Ingram argues that the district court abused its discretion in revoking his probation. As the State points out, based upon the district court's ruling at the Ortiz hearing, it is questionable whether this court has jurisdiction to address the issue of probation revocation. Nevertheless, we will briefly address the merits of Ingram's claim. “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. [Citation omitted.]” State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). As stated above, 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. Hilt, 299 Kan. at 186.
Here, Ingram admittedly violated the terms of his probation in multiple ways. Moreover, the district court had warned Ingram at sentencing that any violation of the conditions of his probation would result in him serving his prison sentence. In revoking Ingram's probation and ordering him to serve his underlying sentence, the district court was not arbitrary, fanciful, or unreasonable, nor did it base its decision upon an error of law or fact. Accordingly, the district court did not abuse its discretion.
Affirmed.