Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant. Ann M. Jumpponen, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.
Ann M. Jumpponen, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., BRUNS, J., and JOHNSON, S.J.
In July 2011, Michael S. Briggs was sentenced to serve 12 months of probation for theft and aggravated failure to appear. Nearly 2 years later, the district court revoked his probation and ordered him to serve his underlying sentence. On appeal, Briggs argues that the district court erred by not imposing an intermediate sanction. He also argues that the district court—when it sentenced him—should have scored a 1986 conviction for battery of a law enforcement officer and a 1987 conviction for assault of a law enforcement officer as nonperson misdemeanors for the purposes of calculating his criminal history score. For the reasons set forth in this opinion, we affirm.
The State charged Briggs in two separate cases with one count each of theft and aggravated failure to appear. In April 2011, Briggs pled guilty to both counts. His presentence investigation (PSI) report revealed that he had a criminal history score of “B,” which included a 1986 conviction for battery of a law enforcement officer and a 1987 conviction for assault of a law enforcement officer. At sentencing on July 1, 2011, the district court granted Briggs' motion for downward dispositional departure and sentenced him to serve a total of 12 months of probation for both counts. The district court also ordered Briggs to pay $60 in restitution to the victim. Although the district court informed him of his appellate rights, Briggs did not appeal his sentence.
About one year later on July 27, 2012, the State filed a motion to revoke Briggs' probation stating that he had failed to report to his supervising officer and had not paid restitution. The district court held a hearing on September 26, 2012, at which Briggs stipulated that he had failed to report and pay restitution. Ultimately, the district court revoked his probation but agreed to reinstate it after he served a 30–day–jail sanction. The district court also extended his probation by an additional 12 months. After completing his sanction on October 26, 2012, Briggs was released from jail.
On February 14, 2013, the State filed another motion to revoke Briggs' probation citing the same reasons that it listed in its previous motion. During his second probation revocation hearing on July 2, 2013, Briggs stipulated that he had failed to make payments, but he disputed that he had failed to report. The State called Thomas Fry—Briggs' probation officer—who testified that Briggs never contacted him after an initial meeting. Ultimately, the district court found that Briggs had violated the terms of his probation, so it revoked his probation and ordered him to serve his underlying sentence. He timely filed an appeal in both district court cases on July 5, 2013. After issuing an order to show cause, this court entered an order consolidating the two appeals on January 9, 2014.
Failure to Impose an Intermediate Sanction
Initially, Briggs argues that the district court erred by not applying the 2013 amendments to K.S.A. 22–3716 when it revoked his probation. Probation from service of a sentence is an act of grace by the sentencing judge and unless otherwise required by law, is a privilege rather than a matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). A district court's decision to revoke probation usually involves two steps: (1) a retrospective factual question of whether the probationer has violated a condition of probation; and (2) a discretionary determination by the sentencing authority whether violation of a condition warrants revocation. State v. Skolaut, 286 Kan. 219, Syl. ¶ 4, 182 P.3d 1231 (2008).
Since the decision to revoke probation rests in the sound discretion of the district court, appellate courts generally review such a decision under the abuse of discretion standard. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). Abuse of discretion means that the decision was (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. Fischer v. State, 296 Kan. 808, 825, 295 P.3d 560 (2013). However, to the extent this court must interpret K.S.A. 22–3716, this court exercises unlimited review. See State v. Riojas, 288 Kan. 379, Syl. ¶ 7, 204 P.3d 578 (2009).
Prior to July 1, 2013, a district court had significant latitude to enter a variety of sanctions once it determined that a defendant had violated the terms of his or her probation. See State v. McGill, 271 Kan. 150, 154, 22 P.3d 597 (2001). The district court could, among other alternatives, continue or revoke probation, assign a defendant to a community correctional services program, or suspend the defendant's sentence and require him or her to serve the original sentence. K.S.A.2012 Supp. 22–3716(b). Effective July 1, 2013, the Kansas Legislature implemented a system of graduated sanctions for felony convictions.
Specifically, the Legislature amended K.S.A. 22–3716 to provide in relevant part:
“(b)(3)(A) Except as otherwise provided, if the original crime of conviction was a felony and a violation is established, the court may impose the violation sanctions as provided in subsection (c)(1).
“(c)(1) Except as otherwise provided, the following violation sanctions may be imposed:
“(A) Continuation or modification of the release conditions of the probation, assignment to a community correctional services program, suspension of sentence or nonprison sanction;
“(B) an intermediate sanction of confinement in jail for a total of not more than six days per month in any three separate months during the period of release supervision. The six days per month confinement may only be imposed as two-day or three-day consecutive periods, not to exceed 18 days of total confinement;
“(C) if the violator already had at least one intermediate sanction imposed pursuant to subsection (c)(1)(B) related to the felony crime for which the original supervision was imposed, remanding the defendant to the custody of the secretary of corrections for a period of 120 days, subject to a reduction of up to 60 days in the discretion of the secretary. ....“ K.S.A.2013 Supp. 22–3716 ; L.2013, ch. 76, sec. 5.
In general, the criminal statutes in effect on the date the defendant committed the crime govern the defendant's penalties. State v. Denney, 278 Kan. 643, 646, 101 P.3d 1257 (2004) ; State v. Parker, 48 Kan.App.2d 68, 74, 282 P.3d 643 (2012). In the present case, the record indicates that the State filed the motion to revoke Briggs' probation on February 14, 2013, based on his failure to report and pay restitution. Therefore, the 2013 amendments do not apply to him. See State v. Kurtz, No. 110,697, 2014 WL 7009641 (Kan.App.2014) (unpublished opinion) (same statute did not apply because it was not in effect at the time the defendant violated the terms of his probation). Because the conduct that led to the revocation occurred before July 1, 2013, the district court properly applied the 2012 version of K.S.A. 22–3716.
Briggs also contends that his sentence was illegal. He argues that the district court incorrectly enhanced his criminal history score at sentencing by including two in-state convictions of battery of a law enforcement officer and assault of a law enforcement officer, which occurred in 1986 and 1987. More specifically, he claims that State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014) (modified by Supreme Court order September 19, 2014) mandates that this court reverse Briggs' conviction and require the district court to score them as nonperson convictions. Because resolving the issue requires interpretation of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21–4701 et seq. , our review is unlimited. Murdock, 299 Kan. at 314.
Prior to the adoption of the KSGA in 1993, Kansas law did not expressly differentiate between nonperson and person crimes. Under the KSGA, district courts calculate the defendant's criminal history score in part by distinguishing between person and nonperson crimes. Person crimes are generally weighted more heavily than nonperson crimes. See K.S.A.2014 Supp. 21–6809.
Although Briggs argues that Murdock is applicable in this appeal, we note that after he filed his brief in this case, our Supreme Court modified its original opinion in Murdock and restricted its holding to out-of-state convictions:
“This court orders a modification to the sentence on page 9 of the slip opinion that states: ‘We recognize this rule results in the classification of all pre–1993 crimes as nonperson felonies—an outcome the State characterizes as unreasonable.’ The sentences shall be modified to read: ‘We recognize this rule results in the classification of all out-of-state pre–1993 crimes as nonperson felonies—an outcome the State characterizes as unreasonable.’ “ (Emphasis added.)
As explained in State v. Waggoner, 51 Kan.App.2d 144, 343 P .3d 530 (2015), the holding in Murdock is tied to an interpretation of K.S.A. 21–4711(e), which specifically governs out-of-state crimes. Accordingly, we conclude that the holding in Murdock is not applicable to in-state convictions that occurred prior to July 1, 1993. Furthermore, we find that by definition the prior crimes of which Briggs was convicted—battery of a law enforcement officer and assault of a law enforcement officer—involve persons. Accordingly, we conclude that the district court did not err in classifying Briggs' previous misdemeanor convictions as person crimes for criminal history purposes.