Opinion
No. 111,554.
04-15-2016
STATE of Kansas, Appellee, v. Archie Joseph Patrick DOOLEY, Appellant.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant. Archie Joseph Patrick Dooley, appellant pro se. Jamie L. Karasek, deputy county attorney, and Derek Schmidt, attorney general, for appellee.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.
Archie Joseph Patrick Dooley, appellant pro se.
Jamie L. Karasek, deputy county attorney, and Derek Schmidt, attorney general, for appellee.
MEMORANDUM OPINION
PER CURIAM.
After being formally sanctioned by his probation officer three times and having his probation revoked and reinstated once, Archie Joseph Patrick Dooley claims the district court abused its discretion by revoking his probation and remanding him to the Kansas Department of Corrections (KDOC) to serve the sentence originally imposed. Dooley also claims his sentence is illegal because the district court improperly calculated his criminal history score. Finding no abuse of discretion or error in the calculation of Dooley's criminal history score, we affirm.
Facts
Dooley's 1998 convictions for three sex-related crimes now requires he register as an offender pursuant to K.S.A. 22–4901 et seq. In 2011, Dooley moved to the McPherson and Saline County area, stopped registering, and was charged with failure to register as an offender. On April 9, 2012, Dooley pled no contest to one count of failure to register as an offender, a severity level 5 person felony. He was sentenced to 120 months' imprisonment; however, the district court granted Dooley's request for a dispositional departure and placed him on probation for 36 months. In November 2012, Dooley's probation officer sanctioned Dooley to 48 hours in the county jail for moving without permission. In January 2013, Dooley was again sanctioned by his probation officer to 5 days in the county jail for moving without permission.
On March 5, 2013, the State filed its first motion to revoke Dooley's probation alleging he had violated the terms of his probation by failing to report, moving without permission, and drug use. The district court revoked and reinstated Dooley's probation following 30 days in the county jail. In August 2013, Dooley again admitted to violating the terms of his probation by consuming illegal drugs. His probation officer sanctioned him to 2 days in the county jail.
On December 17, 2013, the State filed its second motion to revoke Dooley's probation alleging he had violated the terms of his probation by failing to report to his probation officer, using illegal and nonprescribed drugs, and absconding from supervision with his whereabouts unknown. At the probation revocation hearing, Dooley stipulated to the alleged violations. The district court accepted Dooley's stipulation to violating the terms of his probation.
Since Dooley had previously been sanctioned by his probation officer and the district court for violating the terms of his probation, the State asked the district court to revoke his probation and impose his underlying sentence. At the time of Dooley's revocation hearing, K.S.A.2013 Supp. 22–3716 controlled the procedure for revocation proceedings.
Despite Dooley's numerous sanctions by his probation officer and one by the district court, Dooley asked the district court to follow the statutory requirements of K.S.A.2013 Supp. 22–3716(c)(1)(C) or (D) and impose an intermediate sanction of 120 or 180 days.
The district court denied Dooley's request for intermediate sanctions, revoked his probation, and ordered him to serve his underlying sentence. At the time of his probation revocation, the district court did not announce on the record a finding that Dooley had absconded, but the journal entry listed absconding as a reason for revocation.
Dooley timely appeals.
Analysis
Dooley's Probation is Revoked
Unless otherwise required by law, probation is a privilege not a right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). A district court's decision to revoke probation will not be overturned absent an abuse of discretion. See State v. Skolaut, 286 Kan. 219, 227–28, 182 P.3d 1231 (2008). A district court abuses its discretion if its judicial action is arbitrary, fanciful, or unreasonable; is based on an error of law; or is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
Here, Dooley does not challenge the decision to revoke his probation. He challenges the district court's application of K.S.A.2013 Supp. 22–3716(c)(1)(E) to send him to the KDOC upon revocation of his probation. This issue requires the appellate court to interpret the provisions of K.S.A.2013 Supp. 22–3716. Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014). Effective July 1, 2013, prior to revoking an offender's probation, the district court must first impose intermediate sanctions absent certain exceptions. See K.S.A.2013 Supp. 22–3716(c).
“The legislature has therefore clarified that the date that controls the law that applies to the imposition of sanctions for violating probation is the law that existed when a defendant violated probation, not the law that existed when the defendant committed the underlying crime as this court held in [State v. ]Dreier [, 29 Kan.App.2d 958, 34 P.3d 480 (2001) ], nor the law in effect when the probation hearing occurred.” State v. Kurtz, 51 Kan.App.2d 50, 56, 340 P.3d 509 (2014), rev. denied 302 Kan. –––– (September 23, 2015).
The district court may revoke probation without imposing an intermediate sanction if the district court makes the appropriate findings pursuant to K.S.A.2013 Supp. 223716(c)(8) as an exception to K.S.A.2013 Supp. 22–3716(c)(2). “[T]he guarantee of an intermediate sanction for a first probation violation is not absolute: A district court may order a felon to serve the underlying sentence for his crime if it relies with specific findings on one of the reasons provided by statute.” State v. Harding, No. 110,677, 2014 WL 3630554, at *3 (Kan.App.2014) (unpublished opinion), rev. denied 302 Kan. –––– (July 27, 2015).
On appeal, Dooley argues the district court abused its discretion by failing to announce on the record at the probation revocation hearing one of the statutorily allowed exceptions. In contrast, the State argues the district court did not err because Dooley stipulated he absconded from supervision. Following Dooley's arguments for an intermediate sanction, the district court denied his request stating:
“THE COURT: Well, the court then will go ahead and accept your admission to the allegations contained in this motion. The court will find that your admission is made voluntarily, freely, knowingly and intelligently with an understanding of the potential consequences, and the court is going to revoke your probation. We'll hear comment on disposition at this time.
....
“THE COURT: Okay. Well, Mr. Dooley, as noted earlier, the court has revoked your probation. This is a serious violation and you've been on probation before, you knew what was required of you, you were given several chances as has been outlined by counsel, and the court is going to require you to be taken—well, you're already in custody, but you're going to serve out the balance of your sentence with [K]DOC. You do have a right to good time credit here of 18 months or 15 percent.”
At the hearing, the district court could have imposed an intermediate sanction under K.S.A.2013 Supp. 22–3716(c)(1)(C) or (D) or, in the alternative, set forth its reasons for invoking an exception under K.S.A.2013 Supp. 22–3716(c)(8) prior to ordering Dooley to serve his prison sentence. While the district court failed to specifically state at the hearing it was revoking probation because Dooley was an absconder, it did accept on the record Dooley's stipulation he was an absconder. The journal entry also states Dooley's probation was revoked in part because he was an absconder. When these statements are considered together, the district court did not abuse its discretion by revoking Dooley's probation without first imposing intermediate sanctions.
We also find a decision by a recent panel of this court in State v. Croslin, No. 113,695, 2016 WL 758661, at *4 (Kan.App.2016) (unpublished opinion), persuasive as it emphasized the importance of looking at the hearing transcripts and the journal entry to confirm what the district court ordered in determining whether the district court made the required findings that the defendant absconded. In Croslin, the district court included the finding in its journal entry just as the court did in this case.
Imposing an Illegal Sentence
Dooley filed a pro se supplemental brief arguing his sentence is illegal because his conviction for failure to register as an offender was enhanced by his conviction requiring him to register as an offender in violation of the dual purpose rule of K.S.A.2010 Supp. 21–4710. K.S.A.2010 Supp. 21–4710 was repealed July 1, 2011. The equivalent statute in effect at Dooley's sentencing was K.S.A.2013 Supp. 21–6810.
As a preliminary matter, Dooley failed to raise this issue below. Generally, 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). However, 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); but see State v. Williams, 299 Kan. 509, 532, 324 P.3d 1078 (2014) (subject matter jurisdiction can be raised at any time); Miller v. Preisser, 295 Kan. 356, 382, 284 P.3d 290 (2012) (same).
Supreme Court Rule 6.02(a)(5) (2015 Kan. Ct. R. Annot. 41) 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. Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068 (2015) (Rule 6.02[a][5] will henceforth be strictly enforced); State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014) (cautioning future litigants to comply with Rule).
“[A] pro se K.S.A. 60–1507 movant is in the same position as all other pro se civil litigants and is required to be aware of and follow the rules of procedure that apply to all civil litigants, pro se or represented by counsel. Mangiaracina v. Gutierrez, 11 Kan.App.2d 594, Syl. ¶ 1, 730 P.2d 1109 (1986).” Guillory v. State, 285 Kan. 223, 229, 170 P.3d 403 (2007).
Dooley's brief fails to explain why this court should consider his argument when he failed to raise the issue before the district court. Dooley also fails to assert any of the exceptions to the general rule to justify why he can assert this claim for the first time on appeal. However, since this issue involves only a question of law arising on proved or admitted facts, we will proceed to resolve the issue. Whether a sentence is illegal within the meaning of K.S.A. 22–3504 is a question of law over which the appellate court has unlimited review. State v. Taylor, 299 Kan. 5, 8, 319 P.3d 1256 (2014). An illegal sentence, as contemplated by K.S.A. 22–3504(1), is a sentence imposed by a court without jurisdiction; a sentence that does not conform to the statutory provision, either in the character or the term of authorized punishment; or a sentence that is ambiguous with respect to the time and manner in which it is to be served. Taylor, 299 Kan. at 8. K.S.A. 22–3504(1) provides that a court may correct an illegal sentence at any time.
Dooley argues the district court erred by enhancing his conviction for failure to register as an offender with the use of his former conviction which required him to register as an offender in violation of the dual purpose rule of K.S.A.2010 Supp. 21–4710 (now K.S.A.2013 Supp. 21–6810.)
K.S.A 2013 Supp. 21–6810(d)(9) states:
“Prior convictions of any crime shall not be counted in determining the criminal history category if they enhance the severity level, elevate the classification from misdemeanor to felony, or are elements of the present crime of conviction. Except as otherwise provided, all other prior convictions will be considered and scored.”
Under the Kansas Sentencing Guidelines Act, “[a] prior conviction may be used to enhance a conviction's severity level or in a calculation of a person's criminal history, but not both.” State v. Paul, 285 Kan. 658, 666, 175 P.3d 840 (2008).
“The inescapable conclusion from an analysis of the statutory scheme including definitions is that a defendant is not an ‘offender’ and has no duty to register unless he or she has been convicted of or adjudicated a juvenile offender for committing one of the referenced offenses. Accordingly, the conviction that created the need for registration under the scheme is necessarily an element of the offense of failure to register and cannot be counted in determining criminal history score under K.S.A. 21–4710(d)(11).” State v. Pottoroff, 32 Kan.App.2d 1161, 1166–67, 96 P.3d 280 (2004).
However, if there is more than one offense in a defendant's criminal history which would require registration, the second offense may be counted towards the defendant's criminal history. See State v. Deist, 44 Kan.App.2d 655, 660, 239 P.3d 896 (2010).
Dooley inaccurately argues on appeal he has only one conviction from Norton County and that it cannot also be used to increase his criminal history score. However, Dooley's 2011 presentencing investigation report clearly shows he had three separate convictions requiring registration as an offender: (1) aggravated indecent liberties with a child; (2) aggravated indecent liberties with a child; and (3) aggravated sexual battery.
It does not matter if all three convictions arose out of a single case; the number of convictions is what matters. See Paul, 285 Kan. at 670. Dooley was convicted of three separate offenses each of which required registration. A review of the presentencing investigation report also shows that while all three convictions are listed as part of Dooley's criminal history, only two of the convictions were used to determine his criminal history score. The district court did not err.
Affirmed.