Appeal from Sedgwick District Court; J. Patrick Walters, Judge.Samuel Schirer, of Kansas Appellate Defender Office, for appellant.Lesley A. Iserwood, assistant district attorney, Mark Bennett, district attorney, Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; J. Patrick Walters, Judge.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant. Lesley A. Iserwood, assistant district attorney, Mark Bennett, district attorney, Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., McANANY, J., and BURGESS, S.J.
Eighteen-year-old Delvin Brown pled guilty to three felony sex offenses that resulted from his relationship with his 15–year–old girlfriend. Brown initially avoided having to serve the controlling presumptive 50–month prison sentence imposed by the court because the district court reluctantly granted him a downward dispositional departure to 36 months' probation. Within 6 months, however, Brown admitted to violating the terms and conditions of his probation for a second time, and the district court ordered him to serve his underlying sentence. This is Brown's appeal from that disposition order. We affirm the district court's order.
Factual and Procedural Background
Only a brief chronology of events leading up to this appeal is necessary to provide context for the issues now before this court.
Based on acts committed in March 2012, the State charged 18–year–old Dalvin Brown with two counts of unlawful voluntary sexual relations and one count of sexual exploitation of a child. The victim of those crimes, A.J.S, was Brown's 15–year–old girlfriend. The exploitation charge resulted from a sexually explicit picture A.J.S took of herself and sent to Brown at his request, a practice commonly referred to as “sexting.” See Miller v. Mitchell, 598 F.3d 139, 143 (3d Cir.2010) (describing “sexting” as “the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via cellular telephones or over the Internet”).
On November 16, 2012, Brown pled guilty as charged pursuant to a plea agreement with the State. Shortly thereafter, the district court revoked Brown's appearance bond because he violated its conditions.
On January 9, 2013, the district court imposed a controlling presumptive 50–month prison sentence. The district court further pronounced that Brown would be subject to lifetime postrelease supervision in light of his conviction of sexual exploitation of a child. See K.S.A.2011 Supp. 22–3717(d)(1)(G)(2), (H) (governing lifetime postrelease supervision). Over the State's objection, the district court then granted Brown's motion for a downward dispositional departure and placed him on probation for 36 months. The district court advised Brown it was “reluctantly” giving him this chance and stressed that he would have to serve his prison sentence if he violated the terms of his probation.
Brown admittedly violated several terms of his probation within the first month. Again over the State's objection, a different district judge gave him a second chance at probation with the additional requirement that Brown enter into and successfully complete the community corrections residential program.
Brown, however, did not take full advantage of this additional chance at probation. Consequently, a warrant was issued on June 14, 2013, based on Brown's intensive supervisor officer's (ISO) allegations that he committed several more probation violations between April 29 and June 11, 2013.
On July 11, 2013, the same district judge who presided over Brown's first probation violation hearing conducted a hearing on his ISO's new allegations. Brown once again admitted to all of the violations. Brown's counsel pleaded with the district court to follow Brown's ISO's recommendations to impose a 60–day sanction and allow Brown to reenter the residential program, where he was making progress. At the very least, Brown's counsel asked the district court to impose a lesser 30–month prison sentence. The district court refused both requests, revoked Brown's probation, and announced that it was “impos[ing] the sentence.” In support, the judge explained that neither he nor the sentencing judge wanted to send Brown to prison at such a young age “for that long period of time,” which is why they had given Brown “three shots.” Yet, the judge found that even with “a 50–month sentence hanging over his head,” Brown repeatedly demonstrated—from the beginning—that he was not amenable to probation. This is Brown's appeal from that probation revocation proceeding.
Was the District Court Obligated to Consider and Apply the Graduated Sanctions Found in K.S.A.2013 Supp. 22–3716(c) Before Requiring Brown to Serve his Underlying Sentence?
We begin by addressing Brown's second issue on appeal. This issue raises the question as to whether our legislature's amendments to K.S.A.2013 Supp. 22–3716 apply retroactively to crimes committed on or before its July 1, 2013, effective date. See L.2013, ch. 76, sec. 5. Pertinent to this appeal, those amendments included the enactment of a series of graduated sanctions that a district court may impose upon finding that an offender has violated a condition of release or assignment, where the original crime of conviction was a felony. Compare K.S.A.2012 Supp. 22–3716(b) with K.S.A.2013 Supp. 22–3716(c). The revised statute does grant the district court the authority to require a defendant to serve the underlying prison sentence without first applying the graduated sanctions under certain circumstances. See K.S.A.2013 Supp. 22–3716(c)(8) (graduated sanctions can be skipped where defendant commits new felony or misdemeanor or absconds from supervision); K.S.A.2013 Supp. 22–3716(c)(9) (graduated sanctions can be skipped “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”).
Both parties engage in extensive argument to demonstrate their respective positions as to why or why not the legislature intended K .S.A.2013 Supp. 22–3716(c) to apply in this case.
The precise theory underlying Brown's contention that this court must reverse his probation revocation and remand for the district court to comply with K.S.A.2013 Supp. 22–3716(c) is not entirely clear. At one point, Brown seems to suggest this court should hold the date of probation violation hearing controls, i.e., he contends the district court had to apply K.S.A.2013 Supp. 22–3716(c) because it became effective before his July 11, 2013, probation revocation hearing. On the other hand, Brown suggests that the date of his underlying crimes controls, but K.S.A.2013 Supp. 22–3716(c) applies retroactively because it is strictly procedural.
The State responds that the graduated sanctions apply only prospectively to underlying crimes committed on or after the July 1, 2013, effective date of K.S.A.2013 Supp. 22–3716(c). In support, the State contends K.S.A.2013 Supp. 22–3716(c) is a substantive criminal statute and suggests retroactive application of its graduated sanctions could run afoul of the Ex Post Facto Clause of the United States Constitution. Should this court consider this issue for the first time on appeal?
Brown admittedly did not raise this issue below. As a result, this court must first determine whether it should address the merits. Generally, this court cannot consider issues not raised below. See State v. Cheffen, 297 Kan. 689, 698, 303 P.3d 1261(201). There are, however, some exceptions to this preservation rule. See State v. Anderson, 294 Kan. 450, 464–65, 276 P.3d 200, cert. denied 133 S.Ct. 529 (2012) (recognizing appellate court can consider constitutional issue raised for the first time on appeal where: “(1) the newly asserted claim involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) the claim's consideration is necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (3) the district court's judgment may be upheld on appeal despite its reliance on the wrong ground or reason for its decision”).
The burden is on the appellant to explain why an issue is properly before an appellate court when it was not raised below. Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40). The failure to do so can result in the dismissal of the appeal. In fact, a recent decision by our Supreme Court indicates our courts must now strictly apply this rule. See State v. Williams, 298 Kan. 1075, 1085–86, 319 P.3d 528 (2014) (reaching merits of constitutional challenge raised for first time on appeal despite appellant's noncompliance with Rule 6.02[a] in part because that rule had not previously been strictly enforced but cautioning, “[f]uture litigants should consider this a warning and comply with Rule 6.02[a] by explaining why an issue is properly before the court if it was not raised below—or risk a ruling that an issue improperly briefed will be deemed waived or abandoned”); State v. Kilma, No. 110,660, 2014 WL 3843473, at *2–3 (Kan.App.2014) (unpublished opinion) (applying warning in Williams in dismissing appeal raising same issue as Brown raises here due to noncompliance with Rule 6.02[a] ), petition for rev. filed August 29, 2014 (pending).
Brown's contention is that this court can consider this issue for the first time under K.S.A. 22–3504(1), which provides, “[t]he court may correct an illegal sentence at any time.” Our Supreme Court has made it clear that “the court” includes an appellate court, which can correct an illegal sentence sua sponte. See State v. Kelly, 298 Kan. 965, 975–76, 318 P.3d 987 (2014). The State did not respond to this argument.
Brown's challenge to the disposition imposed upon his violation of probation does not constitute a challenge to an illegal sentence. Our Supreme Court has defined an “illegal sentence” as:
“(1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in the 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. [Citations omitted.]” State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013).
This court has previously rejected the characterization of challenges to the modification or revocation of probation as challenges to an illegal sentence where the dispositions have no effect on the underlying sentence. In State v. Grossman, 45 Kan.App.2d 420, 426, 248 P.3d 776 (2011), this court concluded that any attempt by defendant to challenge the modification of the terms of his probation as an illegal sentence failed because the modification had no effect on his underlying sentence. The underlying premise of this holding is that “probation is not a sentence, nor does it affect the sentence.” 45 Kan.App.2d at 426 (citing State v. Dubish, 236 Kan. 848, 851, 696 P.2d 969  ). This court explained:
‘a procedure under which a defendant, found guilty of a crime upon verdict or plea, is released by the court after imposition of sentence, without imprisonment except as provided in felony cases, subject to conditions imposed by the court and subject to the supervision of the probation service of the court or community corrections.’ (Emphasis added.) K.S.A. 21–4602(c).” Grossman, 45 Kan.App.2d at 426.
Brown also cites State v. McKnight, 292 Kan. 776, 257 P.3d 339 (2011) in support of his contention that this court can consider this issue for the first time under K.S.A. 22–3504(1). The issue in McKnight was whether the district court had the authority to modify the defendant's postrelease supervision period upon revoking his probation. The issue came up in the context of a motion to correct an illegal sentence filed by the State and granted by the district court. Our Supreme Court held the issue was properly considered under K.S.A. 22–3504(1) because it raised a challenge to the district court's authority to impose a modified sentence upon the revocation of the defendant's probation. 292 Kan. at 778–80.
McKnight is distinguishable. Here, the district court imposed Brown's underlying sentence without any modifications upon revoking his probation. Nonetheless, to the extent that Brown challenges the court's authority to impose his underlying sentence without first considering the graduated sanction provisions in K.S.A.2013 Supp. 22–3716(c), McKnight might arguably support his contention. However, there is an inherent conflict between Brown's argument for why this court can consider the issue for the first time on appeal and the underlying merits of his argument.
On the merits, Brown argues K.S.A.2013 Supp. 22–3716(c) applies retroactively because it is merely procedural and does not adversely affect the parties' rights. See State v. Williams, 291 Kan. 554, 557, 244 P.3d 667 (2010) (noting that while “[t]he fundamental rule is that a statute operates prospectively unless its language clearly indicates that the legislature intended it to operate retroactively,” an exception allowing for retroactive application applies “if the statutory change does not prejudicially affect the substantive rights of the parties and is merely procedural or remedial in nature”); State v. Hutchison, 228 Kan. 279, 287, 615 P.2d 138 (1980) (stating, “[a]s related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishment therefor; whereas procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished.”).
On the other hand, to explain why this court can consider the issue for the first time under K.S.A. 22–3504(1), Brown suggests K.S .A.2013 Supp. 22–3716(c) is a sentencing statute. Sentencing statutes are generally considered substantive. Accord State v. Sylva, 248 Kan. 118, 120–21, 804 P.2d 967 (1991) (amendment to criminal sentencing statutes making certain offenses punishable with presumptive probation is substantive rather than procedural); State v. Martin, 270 Kan. 603, 608, 17 P.3d 344 (2001) (citing Hutchison, 228 Kan. at 287, in holding “[t]he prescription of a punishment for a criminal act is substantive, not procedural, law”); State v. Sutherland, 248 Kan. 96, 106, 804 P.2d 970 (1991) (recognizing “substantive” criminal statute “involves the length or type of punishment”). In that case, the fundamental rule of prospective-only operation would apply to K.S.A.2013 Supp. 22–3716(c), so Brown's argument for retroactive application would necessarily fail.
Brown's conflicting arguments provide no basis under McKnight to challenge the courts authority to revoke his probation or to raise this issue for the first time on appeal. Brown has not established any exception for the consideration of this issue for the first time on appeal and his issue fails. Recent legislation answers the retroactivity question.
Even if Brown could establish an exception which would permit this court to consider this issue for the first time on appeal, his argument is without merit.
If this issue was to be considered, there would be no need to address the parties' extensive application of varying rules of statutory interpretation to support their respective positions on the issue of the retroactivity of K.S.A.2013 Supp. 22–3716(c). Our legislature has now made its intent on that issue clear. As part of its enactment of Senate Substitute for House Bill 2448, which became the law effective July 1, 2014, our legislature added the following retroactivity provision to K.S.A.2013 Supp. 22–3716(c):
“(12) 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.) L.2014, ch. 102, sec. 8.
Simply put, the plain language of this statute now tells us the date of the offender's violation of the conditions of release or assignment triggers the application of K.S.A.2013 Supp. 22–3716(c). None of the probation violations that Brown admitted to occurred on or after July 1, 2013. Accordingly, there would be no err in failing to apply the graduated sanctions in K.S.A.2013 Supp. 22–3716(c).
Did the District Court Err in Not Specifically Restating Brown's Underlying Prison Sentence and the Postrelease Supervision Period After Revoking his Probation?
Turning now to Brown's first issue on appeal, he maintains remand for a new disposition hearing is required because “the district court never expressly stated what Mr. Brown's post-revocation sentence was.” The State responds that the context of the district court's judgment at the disposition hearing indicates the court clearly intended to order Brown to serve his underlying sentence that was imposed before he was granted the dispositional departure. This court's review is unlimited.
The parties identify the issue as whether the district court properly imposed a sentence after revoking Brown's probation. Such issues invoke a question of law over which an appellate court exercises unlimited review. See State v. Sandberg, 290 Kan. 980, 984, 235 P.3d 476 (2010). Likewise, review is unlimited to the extent that resolution of this issue requires statutory interpretation. See State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). The district court was not obligated to restate the complete sentence.
Brown's complaint here concerns the district court's remarks at the second disposition hearing that it was “ ‘impos[ing] the sentence’ “ upon the revocation of Brown's probation. Brown concedes that, when taken in context, by referring to “ ‘the sentence,’ “ the district court “seems to mean ‘the sentence announced at Mr. Brown's original sentencing hearing.’ “ Nonetheless, Brown argues this was insufficient to constitute the pronouncement of “an actual probation revocation sentence” because the district court “did not actually provide an express term of imprisonment or postrelease supervision.”
The only authority Brown cites in support of his argument is Abasolo v. State, 284 Kan. 299, 160 P.3d 471 (2007). In Abasolo, the district court mistakenly believed the defendant's underlying prison sentence was 36 months, so that is the sentence it ordered her to serve when it revoked her probation. But the defendant's underlying sentence was actually 52 months, and that was the sentence reflected in the journal entry of probation revocation. The defendant filed a motion under K.S.A. 60–1507 to correct the journal entry to reflect the sentence pronounced at the probation violation hearing. The State argued the district court's unintentional misstatement at the probation violation hearing should not be interpreted to reduce the defendant's sentence from 52 to 36 months' imprisonment. Our Supreme Court disagreed and ordered the journal entry corrected to reflect that the defendant's sentence was 36 months. 284 Kan. at 310. In support, the court primarily relied upon two legal principles or rules: First, a criminal sentence is effective when pronounced from the bench and controls in the event of any difference between the pronouncement and the journal entry. 284 Kan. at 304–05. Second, under the plain language of K.S.A.2006 Supp. 22–3716(b), as interpreted in State v. McGill, 271 Kan. 150, 154, 22 P.3d 597 (2001), the district court had the discretion to impose either the original sentence or a reduced sentence at a probation violation hearing. Abasolo, 284 Kan. at 305–06, 310. Applying these principles to the facts before it, our Supreme Court held the district court imposed a reduced 36–month prison sentence when it orally pronounced that sentence upon revoking the defendant's probation. 284 Kan. at 310.
Abasolo is distinguishable and does not support Brown's argument. Here, the district court never imposed a modified prison sentence. K.S.A.2012 Supp. 22–3716(b) governed the probation revocation proceedings at issue in this appeal. That statute directs, as it did when Abasolo was decided, that once a probation violation was established, the district court had the discretion to “require the defendant to serve the sentence imposed, or any lesser sentence.” K.S.A.2012 Supp. 22–3716(b). See McKnight, 292 Kan. at 780 (discussing broad extent of court's discretion during disposition for probation violation). The district court chose to require Brown to serve his underlying sentence. It is undisputed that the district court had already pronounced the terms of that complete sentence during Brown's original sentencing hearing as required by K.S.A.2011 Supp. 21–6804(e)(2). No authority was found to support Brown's contention that the district court had to repeat those terms in requiring Brown to serve that sentence upon revoking his probation.
Did the District Court Abuse its Discretion in Ordering Brown to Serve his Underlying Prison Sentence?
Brown's remaining two issues on appeal challenge the district court's exercise of its discretion to impose the underlying sentence under K.S.A.2012 Supp. 22–3716(b). In his third issue, Brown contends the district court abused its discretion because it was “unaware that [he] had an underlying lifetime postrelease sentence.” In his fourth issue, Brown argues that even if the court was aware that lifetime postrelease supervision was part of his sentence, it was unreasonable for the district court to impose that part of his underlying sentence. These arguments will be considered in turn below. Review is for abuse of discretion.
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. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). As the party asserting an abuse of discretion, Brown bears the burden of showing such abuse of discretion. See State v. Rojas–Marceleno, 295 Kan. 525, 531, 285 P.3d 361 (2012). The district court is presumed to know the extent of Brown's underlying sentence.
Brown first suggests his disposition was based on an error of law because the district judge was unaware of the extent of the underlying sentence he was imposing upon revoking Brown's probation. More specifically, Brown suggests the district court was unaware that Brown faces lifetime postrelease supervision once he serves his 50–month prison sentence. He begins this argument by pointing out that under K.S.A.2012 Supp. 22–3716(b), the district court had the discretion to impose a lesser period of postrelease supervision. See McKnight, 292 Kan. 776, Syl. ¶ 1. Brown also highlight's Justice Johnson's comment in a dissent that “[w]ith lifetime postrelease supervision, [a defendant] will not experience another day of freedom the rest of his life.” State v. Mossman, 294 Kan. 901, 931, 281 P.3d 153 (2012) (Johnson, J., dissenting). Brown next points out that his lifetime postrelease supervision period was not specifically mentioned after the district judge lamented that Brown violated his probation even with a 50–month prison sentence looming over his head. Brown supposes from the fact that the judge did not also mention the lifetime postrelease supervision that the judge “probably assumed” that Brown was only subject to a 24–month postrelease supervision period given the severity level of his crimes.
According to Brown, the district court's lack of awareness of his lifetime postrelease supervision period is similar to the district court's belief in State v. Fisher, 249 Kan. 649, 605, 822 P.2d 602 (1991) that a prison sentence was “automatic” for a conviction of possession of cocaine, irrespective of the particular facts of the case. Unlike in Fisher, however, the district court never affirmatively indicated any misunderstanding of the law governing Brown's postrelease supervision period.
The State responds that Brown's argument is not only “borne solely from conjecture” but is refuted by the record. In support, the State points out that the same district judge presided over Brown's first probation violation hearing. According to the State, the judge's comments during that hearing showed that he was “keenly aware” of Brown's underlying sentence and why he received a dispositional departure. Those comments, however, centered only on Brown and his girlfriend's seeming inability to recognize the gravity of the 50–month prison sentence he was facing if he violated the terms of his probation. The district court never specifically commented about the lifetime postrelease supervision period Brown faced once he was done serving that sentence.
Brown has not met his burden of establishing the district court abused its discretion because it did not know he was subject to lifetime postrelease supervision. This court presumes the district court knew the law. See State v. Johnson, 258 Kan. 61, 65, 899 P.2d 1050 (1995) (citing Chance v. State, 195 Kan. 711, 715, 408 P.2d 677 , in stating, “[t]he trial court is presumed to know the law”). Thus, this court must presume the district court was aware of Brown's complete sentence. Brown's suggestions to the contrary are wholly speculative and insufficient to satisfy his burden of proving an abuse of discretion. To the extent Brown challenges his underlying sentence, this court lacks jurisdiction.
In his fourth issue on appeal, Brown maintains that even if this court disagrees with his third argument, it must still find the trial court abused its discretion because it was “manifestly unreasonable” to “impose a lifetime custody sentence.” In support, Brown directs this court's attention to secondary authorities that tend to support his position the actions that led to the revocation of his probation— i.e., staying in contact with his girlfriend, testing positive for marijuana, and skipping out on court-ordered treatment—“are not extremely unusual” in the broad context of adolescent behaviors. Brown proclaims that “most of those misguided adolescences [ sic ] grow up, and become responsible adults”; but the district court has effectively “denied [him] that opportunity” because if he ultimately violates postrelease supervision, he could end up in prison for life. In summary, Brown “implores this [c]ourt to ask whether Mr. Brown's punishment fits his crime” and contends “no reasonable person could conclude” it does.
The State once again responds that the record belies Brown's suggestion that his probation violations are little more than “adolescent errors and proclivities.” The State then details Brown's probation violations, which it characterizes as illustrative of Brown's ongoing defiance of authority and unwillingness to comply with the terms and conditions of his dispositional departure. Thus, the State insists reasonable persons would agree with the district court's imposition of the underlying sentence.
Brown has not shown how the district court's imposition of the underlying presumptive sentence upon the revocation of Brown's dispositional departure to probation is somehow arbitrary, fanciful, or unreasonable.
To the extent that Brown is challenging the original imposition of lifetime postrelease supervision, this court does not have jurisdiction to consider any challenge to his underlying sentence. Brown's argument here is similar to a challenge to the constitutionality of postrelease supervision, an issue which has come up a lot recently in our courts. In Mossman, our Supreme Court held:
“A claim that a criminal defendant's sentence of lifetime postrelease supervision is cruel or unusual punishment is ripe for decision at sentencing and in a direct appeal of the sentence. Even though the supervision will not begin until sometime in the future after the defendant has completed a term of imprisonment and no one knows exactly what conditions will be imposed on the defendant at that time, the claim is ripe because the postrelease supervision term is part of the sentencing judgment and it is known that the defendant's rights and liberties will be restricted in some manner.” 294 Kan. 901, Syl. ¶ 3.
Under this reasoning, which this court is duty bound to follow, the proper time for Brown to challenge the fairness or propriety of lifetime supervision was at his original sentencing or in a timely direct appeal from that sentencing. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011) (recognizing Supreme Court precedent binding on Court of Appeals absent any indication of departure), rev. denied 294 Kan. 946 (2012); State v. Inkelaar, 38 Kan.App.2d 312, 317–18, 164 P.3d 844 (2007) (finding this court lacked jurisdiction to consider issue on appeal from probation revocation where issue should have been raised in direct appeal of sentence), rev. denied 286 Kan. 1183 (2008). Accord State v. Long, No. 107,758, 2013 WL 1876456, *2 (Kan.App .) (unpublished opinion) (applying this reasoning in Mossman to find district court properly held it lacked jurisdiction to consider challenge to constitutionality of lifetime postrelease supervision at probation revocation hearing), rev. denied 297 Kan. 1252 (2013).