text:
    In the MATTER OF the MARRIAGE OF Jaime L. WHILDIN, Appellant, and Thomas M. Whildin, Appellee.
    No. 119,489
    Court of Appeals of Kansas.
    Opinion filed July 5, 2019.
    Joseph W. Booth, of Lenexa, for appellant.
    Steven A. Jensen, of Paola, for appellee.
    Before Schroeder, P.J., Buser and Atcheson, JJ.
    MEMORANDUM OPINION
   Per Curiam:

This appeal involves the enforceability of contractual provisions in a separation agreement and property settlement filed by Jaime L. Whildin and Thomas M. Whildin and incorporated into their divorce decree.

Jaime appeals the hearing officer's order modifying child support and the district court's judgment affirming that order. Jaime raises four issues on appeal. First, she contends the district court erred by refusing to enforce the parties' agreement that Thomas would maintain extensive business records and employ a certified public accountant (CPA) to establish his yearly gross domestic income for purposes of determining future child support. Second, Jaime argues the district court should have enforced the stipulation of Thomas' minimum gross domestic income when calculating child support. Third, Jaime asserts the district court erred when using the extended income formula to calculate the parties' child support obligations. Fourth, Jaime contends the district court erred by not awarding her attorney fees. Fifth, Jaime seeks attorney fees for prosecuting this appeal. Finally, Thomas, as appellee, claims error in the arbitrary imputation of a gross wage of $52,500 per year as Thomas' gross domestic income for purposes of calculating child support.

Upon our review, we affirm the rulings of the hearing officer and district court. We also dismiss Thomas' claim of error and deny Jamie's motion for appellate attorney fees.

FACTUAL AND PROCEDURAL BACKGROUND

Jaime and Thomas were married in 2003. During their marriage, the couple raised their two children together and resided in La Cygne. In October 2013, Jaime filed a petition for divorce and moved to Louisburg.

During the divorce proceedings, Jaime was employed as an air traffic control specialist with the Federal Aviation Administration earning about $124,912 per year. Thomas was a self-employed electrician who owned his own electrical business which he operated out of the marital residence. Throughout the litigation, there was disagreement regarding Thomas' income for purposes of determining child support. Jaime alleged Thomas' annual income was about $120,000, while he calculated his annual income at $14,040.

Ultimately, Jaime and Thomas entered into a separation agreement, property settlement, and parenting plan. The parenting plan called for joint legal custody and shared residential custody of the minor children. The plan also provided that the couple would share parenting time on an equal basis with the children. Under the plan, the children were to attend school in Louisburg instead of LaCygne.

The separation agreement and property settlement (Agreement) provided that Jaime was to pay Thomas $350 in spousal maintenance for a 24-month period. The Agreement also contained several provisions pertaining to child support payments. Although the couple disagreed on the methods and figures to calculate child support, they compromised with Jaime agreeing to pay Thomas $900 per month for child support. For his part, Thomas agreed to pay all direct expenses for the two children.

The Agreement also outlined the couple's stipulations for future modifications of child support payments. The couple agreed that Thomas had no right to seek an increase in child support payments until after July 1, 2016. Thomas stipulated that he would maintain proper financial records, financial reports, source documents, and employ a CPA to prepare quarterly and annual financial reports.

Finally, the couple stipulated that in any future child support modification proceedings, Thomas' gross domestic income for calculating support "shall be either [Thomas'] gross domestic income at that time or the sum of $75,000.00, whichever is greater." The Agreement provided that Thomas' gross domestic income could be less than $75,000 only if he was disabled or not gainfully employed because of serious injury or illness. The couple suggested these stipulations were necessary for the future because of the dispute over Thomas' income.

In August 2014, the district court issued a divorce decree which incorporated the Agreement. The district court ordered that Thomas should maintain appropriate record keeping to show his gross domestic income from self-employment. Additionally, the district court ordered, per the Agreement, that Thomas' gross domestic income when modifying child support would be the greater of his actual gross domestic income or $75,000.

About a year and a half later, on March 18, 2016, Thomas moved to modify child support. He argued that child support should be modified because Jaime's income had increased, the parties needed an expense sharing plan, and his receipt of spousal maintenance was set to terminate in June 2016. Thomas sought an order increasing Jaime's monthly child support obligation to $1,466 effective July 1, 2016.

In Jaime's answer to Thomas' motion for modification, she claimed he was barred from arguing that his gross domestic income was less than $75,000. Jaime also asserted that Thomas failed to produce business records and information that he agreed to maintain under the Agreement. She sought attorney fees incurred due to Thomas' motion to modify child support. Thomas responded that his record keeping requirements and stipulated minimum gross domestic income were void as against public policy and not in the children's best interests. Thomas claimed his income for 2015 was $28,353, including Jaime's maintenance payments to him.

An administrative hearing officer held a hearing on Thomas' motion to modify child support. At the hearing, the parties discussed the children's daycare situation and Thomas' work hours. Thomas claimed his work hours were limited due to transporting the children to and from school in Louisburg. This travel limited Thomas to working about 25-30 hours per week for which he could not feasibly make $75,000 a year. Jaime suggested that the children's maternal grandmother could pick up the children from school and watch them until Thomas finished work. The hearing officer noted that Thomas needed to work 40 hours per week and ordered the parties to obtain daycare for the children.

With regard to the dispute over the amount of Thomas' income, the hearing officer advised that she was "not stuck" with the parties' stipulation that Thomas had a minimum gross income of $75,000 a year. Thomas argued that, with his reduced hours, he was currently making less than $2,000 a month. With an increase to a 40-hour work week, Thomas opined that he could make about $30,000 a year.

For her part, Jaime insisted the hearing officer should use the $75,000 minimum amount that Thomas agreed should be imputed as his gross domestic income. She argued that Thomas "whittle[d]" down his income by claiming a "bunch of expenses." Jaime suggested that Thomas failed to maintain records he agreed to keep and did not provide documents to substantiate his income and expenses. Instead, Thomas produced only a profit and loss statement and bank records. Jaime asserted the Agreement's provision requiring Thomas to keep business records was not against public policy and should be enforced.

The hearing officer split the difference between the parties' disputed claims about Jaime's income and imputed a wage of $52,500 per year as Thomas' gross income for purposes of calculating child support. Next, a 15% parenting time adjustment was made to Jaime's child support obligation. The hearing officer calculated Jaime's annual income at $162,750.16 based on her most recent paystub.

At the end of the hearing, Jaime questioned why the hearing officer was not enforcing the Agreement requiring Thomas to maintain certain business records. The hearing officer responded that because Thomas was self-employed he needed to maintain financial records but due to the significant expense of hiring a CPA to maintain and analyze the records provided in the Agreement, she was not enforcing that provision.

The hearing officer filed a journal entry memorializing the hearing. The hearing officer found the Agreement's provision stipulating to a minimum gross income for Thomas of $75,000 was against public policy and unenforceable. The provision requiring Thomas to maintain business records was also deemed unenforceable. Based on Thomas' imputed income of $52,500 per year and Jaime's annual income of $162,750.16, the hearing officer ordered Jaime to pay Thomas $2,167 per month in child support and filed a child support worksheet in support. The worksheet indicates that the hearing officer used the extended income formula to calculate Jaime's child support obligation.

Jaime filed a motion for review, asking the district court to review the hearing officer's child support order. In her motion, Jaime argued: (1) The provision requiring Thomas to maintain business records was valid and nonmodifiable; (2) the stipulation that Thomas' gross income would be calculated at a minimum of $75,000 was an enforceable agreement; and (3) the hearing officer erred by using the extended income formula to calculate child support. Jaime sought the calculation of child support using the stipulation that Thomas' annual income was $75,000. She also sought attorney fees based upon her claim that Thomas breached the Agreement.

The district court affirmed the hearing officer's child support rulings. In its ruling, the district court cited In re Marriage of Schoby , 269 Kan. 114, Syl. ¶ 1, 4 P.3d 604 (2000), for the rule that "[d]ivorced parents cannot legally reduce child support or terminate the obligation by a contractual agreement or otherwise." Relying on Schoby and three out-of-state cases, the district court adopted the hearing officer's findings of fact and conclusions of law in their entirety.

Jaime filed a timely appeal.

GENERAL LEGAL PRINCIPLES APPLICABLE TO SEPARATION AGREEMENTS AND CHILD SUPPORT

A district court has continuing jurisdiction to modify a child support order when the facts and circumstances make modification proper. Schoby , 269 Kan. at 121. Our court ordinarily reviews a district court's order determining the amount of child support for an abuse of discretion. In re Marriage of Skoczek, 51 Kan. App. 2d 606, 607, 351 P.3d 1287 (2015). But the interpretation of the Kansas Child Support Guidelines (KCSG) is a question of law subject to unlimited review. 51 Kan. App. 2d at 607.

This appeal involves interpreting the legal effect of a separation agreement. An appellate court exercises unlimited review over the interpretation and legal effect of written instruments and our court is not bound by the district court's interpretation of those instruments. Frazier v. Goudschaal , 296 Kan. 730, 748, 295 P.3d 542 (2013). As a result, to the extent this issue involves interpreting the Agreement, our court's review is de novo. In re Marriage of Strieby , 45 Kan. App. 2d 953, 961, 255 P.3d 34 (2011).

A separation agreement is subject to the same rules of law applicable to other contracts. In re Marriage of Traster , 301 Kan. 88, 105, 339 P.3d 778 (2014). Contracts must be liberally interpreted to carry out the intention of the contracting parties and our court upholds contracts if they are fairly and understandingly made, are just and equitable in their provisions, and are not obtained by fraud or overreaching. 301 Kan. at 105. There is no presumption that a contract is illegal, and the burden of showing the wrong is upon the person who seeks to deny the obligation. The presumption is in favor of innocence and the taint of wrong is a matter of defense. 301 Kan. at 105 (quoting Frazier , 296 Kan. at 749 ).

A separation agreement is a special kind of contract, however, because without consent by the parties, "[m]atters settled by an agreement incorporated in the decree, other than matters pertaining to the legal custody, residency, visitation, parenting time, support or education of the minor children , shall not be subject to subsequent modification by the court." (Emphases added.) K.S.A. 2018 Supp. 23-2712(b). Importantly, any provisions in a settlement agreement related to the support of a minor child are subject to the control of the district court. K.S.A. 2018 Supp. 23-2712(a). Child support is a right belonging to the child and may not be reduced or terminated by an agreement between the parents. Schoby , 269 Kan. 114, Syl. ¶ 1.

Finally, Kansas public policy requires our courts to act in the best interests of the children when determining the legal obligations to be imposed and the rights conferred in the parent and child relationship. Frazier , 296 Kan. 730, Syl. ¶ 7. "After the family unit fails to function because of legal dissolution, the child's interests become a matter for the State's intrusion." In re Marriage of Ross , 245 Kan. 591, 602, 783 P.2d 331 (1989). In this function, courts do not allow a parent's claim for a child that is based solely or predominantly on selfish motives to jeopardize the child. Frazier , 296 Kan. at 747.

FAILURE TO ENFORCE THE RECORD KEEPING REQUIREMENT

Jaime contends the hearing officer and district court erred when they refused to enforce the provision in the Agreement that Thomas would maintain various business records and employ a CPA to prepare financial reports and assist in bookkeeping. In response, Thomas argues this provision is not enforceable because it is against Kansas public policy.

The hearing officer did not enforce this provision of the settlement agreement because-although it was important for Thomas to maintain records-due to his self-employed status, the hearing officer found the significant expense and burdens associated with hiring a CPA to analyze, keep, and maintain the specified records was cost-prohibitive. Moreover, as the hearing officer informed Thomas, "I need you making money."

On appeal, Jaime suggests the hearing officer and district court did not have jurisdiction to modify the Agreement. However, the records provision was written to provide a financial basis to calculate child support, and the provision is found in the section of the Agreement entitled "Agreements and Stipulations for Future Modification of Child Support." We are persuaded this provision of the Agreement was pertaining to child support, and, therefore, appropriately within the jurisdiction of the hearing officer and district court. See K.S.A. 2018 Supp. 23-2712(a) and (b).

Our reading of the record indicates the hearing officer, while not enforcing the Agreement's provision for collection of voluminous, detailed records and source documents with periodic analysis by a CPA, did emphasize the necessity for Thomas to maintain essential records to prove his income and expenses for purposes of future child support modifications. Given the obvious expense of complying with this provision, and the need for Thomas to limit expenses because of his self-employment, we are unable to conclude that this discretionary judgment was an abuse of discretion.

FAILURE TO ENFORCE THE STIPULATION REGARDING THOMAS' MINIMUM INCOME

Jaime next contends the district court erred when it refused to apply the provision in the Agreement that stipulated that Thomas' gross domestic income would be calculated at a minimum of $75,000 a year. Thomas responds that this stipulation was not in the best interests of the children and was unenforceable as against public policy. Like the previous issue, this subject matter involves interpreting the legal effect of the parties' separation agreement. Our review is unlimited. Frazier , 296 Kan. at 748.

To prevent future disputes in calculating Thomas' income, the parties stipulated that his gross domestic income would be set at a minimum of $75,000 when considering future child support modifications. The provision of the Agreement reads as follows:

"Stipulations as to Husband's Income for Future Support Modification Purposes: The parties agree and stipulate that for any and all future child support modification actions that the Husband's gross domestic income at the time of the child support modification shall be either Husband's gross domestic income at that time or the sum of $75,000.00, whichever is greater. The parties further stipulate and agree that the sole basis for Husband's gross domestic income to be determined to be less than the sum of $75,000.00 it would require the Court to determine that Husband is disabled or unable to be gainfully employed due to a serious injury or illness."

The KCSG provides the basis for establishing and reviewing child support orders, including cases settled by agreement of the parties. KCSG § I. (2019 Kan. S. Ct. R. 83); In re Marriage of Brand , 273 Kan. 346, 353, 44 P.3d 321 (2002). Judges and hearing officers must follow the guidelines and courts must consider all relevant evidence presented when setting an amount of child support. KCSG § I.

The KCSG allows income to be imputed to a party "in appropriate circumstances." KCSG § II.F.1. (2019 Kan. S. Ct. R. 86). The guidelines provide a nonexclusive list of five assumptions and appropriate circumstances for when a parties' income may be imputed:

1. Without substantial justification, it is assumed that a parent can earn at least the federal minimum wage and work 40 hours per week.
2. When a parent can work, but is deliberately unemployed.
3. When a parent is terminated from employment for misconduct.
4. When a parent receives significant in-kind payment or reimbursement from employment.
5. When a parent is deliberately underemployed to avoid child support. KCSG §§ II.F.1.a.-II.F.1.e.

Depending on the applicable circumstance, the guidelines impute income based on previous wages, occupation skills, federal minimum wage, value of in-kind payments, and potential earnings. KCSG § II.F.1.

In this case, the hearing officer and district court found the parties' stipulation that Thomas' gross domestic income would be at least $75,000 was against public policy and unenforceable. Instead of enforcing the stipulation, the hearing officer, after being informed of all the circumstances, imputed a wage of $52,500 for Thomas' income. Although this income was higher than Thomas' actual earnings as stated in his income tax returns, additional wages were imputed because Thomas was working less than 40 hours per week.

As mentioned earlier, parties to a divorce may not alter by agreement the amount of child support payments made to the parent with primary custody of the children. Schoby , 269 Kan. at 117. Even if the parties make an agreement for child support or for altering child support, the court maintains the power to modify the order in the best interests of the child: "The family court may always modify child support upon a proper showing of a change in either the child's needs or the supporting parent's financial ability." 2 Elrod, Kansas Law and Practice: Kansas Family Law § 14:30 (2018-2019 ed.).

The stipulation of Thomas' minimum income for calculating child support is a matter relating to support of his children. Accordingly, this provision was subject to the jurisdiction and control of the district court and the court could modify the order in the best interests of the children. K.S.A. 2018 Supp. 23-2712(a).

On appeal, Jaime contends the district court was bound by the stipulation of Thomas' minimum gross domestic income because no public policy prevents parties from agreeing they will make a minimum amount of income. Jaime also argues that the stipulation does "not necessarily reduc[e] the support to the children."

Identifying a parties' income when calculating child support depends on a factual analysis that is applied on a case-by-case basis. In re Marriage of Matthews , 40 Kan. App. 2d 422, 427, 193 P.3d 466 (2008). Typically, parties are bound to their stipulations. State v. Stegman , 41 Kan. App. 2d 568, 571, 203 P.3d 52 (2009). "Parties are obviously encouraged to enter into stipulations to avoid undue costs or time consuming litigation when there is no real dispute." In re Care & Treatment of Ontiberos , 295 Kan. 10, 35, 287 P.3d 855 (2012). On the other hand, a court is not bound by erroneous stipulations, admissions on questions of law, or the legal conclusions from admitted facts. In re Adoption of A.A.T. , 42 Kan. App. 2d 1, 7, 210 P.3d 640 (2006).

While the stipulation does not necessarily reduce the total child support amount, imputing a minimum annual income of $75,000 when Thomas does not earn that wage will always reduce Jaime's child support obligation below what would otherwise be proper under the guidelines.

A district court must follow the KCSG when calculating the amount of child support due. K.S.A. 2018 Supp. 23-3002(a). The guidelines include schedules that consider various data about income and expenditures to aid in properly assessing the income and expenditures involved in calculating child support. KCSG §§ II.B. and II.C. (2019 Kan. S. Ct. R. 84); KCSG § App. I (2019 Kan. S. Ct. R. 116); KCSG § App. II (2019 Kan. S. Ct. R. 118). The calculations of parental child support obligations under the guidelines creates a rebuttable presumption of a reasonable child support order. KCSG § I. Moreover, "[a]ny deviation from the amount of child support determined by the use of the guidelines must be justified by written findings in the journal entry." In re Marriage of Thurmond , 265 Kan. 715, 716, 962 P.2d 1064 (1998).

Applying the stipulation and calculating Thomas' annual income at $75,000 when he does not, in fact, earn that amount results in an artificially lowered child support obligation for Jaime. For example, in this case the hearing officer calculated Thomas' domestic gross income at $48,791-the $52,500 imputed gross income minus $3,709 in reasonable business expenses. After computing child support and applying a parenting time adjustment, Jaime's child support obligation was set at $2,167 a month and Thomas' obligation was fixed at $1,239 a month. When using the same expenditures and parenting time adjustment but imputing to Thomas $75,000 annual domestic gross income, Jaime's child support obligation would be $2,065 a month and Thomas' obligation would be $1,618 a month.

Although applying the stipulation would result in a higher total child support obligation, this methodology violates public policy by reducing Jaime's child support obligation while envisioning that Thomas will pay the discrepancy in child support with a wage higher than he actually receives.

"Child support has three purposes: (1) to protect the well-being of the child; (2) to enforce the social consensus that both parents have a support obligation; and (3) to limit the size of the gap between the child's standard of living and the higher standard of living of the support obligor." 2 Elrod, Kansas Law and Practice: Kansas Family Law § 14:1 (2018-2019 ed.).

In our view, the stipulation of Thomas' minimum gross domestic income violates the first and third purposes of child support.

First, the stipulation has the potential to harm the well-being of the children. If the stipulation was followed, Jaime would pay less in child support obligations. While Thomas' portion of child support would be greater, the expectation that Thomas should provide this increased support is based on an overstated income not reflected in reality. As a consequence, the children could be placed in financial jeopardy because Jaime would pay less in child support, and Thomas-the child support obligee-would be unable to provide his portion of child support. Importantly, Kansas public policy prevents child support from being reduced by agreement of the parents. Schoby , 269 Kan. 114, Syl. ¶ 1. Although the guidelines allow income to be imputed in some instances, this is not an appropriate circumstance like those identified in KCSG § II.F.1.

Second, the stipulation also violates the purpose of child support to limit the size of the gap between the children's standard of living and the higher standard of living of the support obligor. Although the parties have shared residential custody, the children spend more time with Thomas. By reducing Jaime's support obligation and increasing Thomas' obligation with no corresponding increase in Thomas' income, the gap between the children's standard of living at Thomas' residence and the higher standard of living of the support obligor increases. A large gap in the wealth and standard of living between two parents may result in one parent having financial superiority over the other, leading to conflict between the parents and undue pressure on the child. See In re Marriage of Wilson , No. 104,830, 2011 WL 4717202, at *6-7 (Kan. App. 2011) (unpublished opinion); 2 Elrod, Kansas Law and Practice: Kansas Family Law § 14:12 (2018-2019 ed.).

In summary, the parties' stipulation that Thomas' gross domestic income would be set at a minimum of $75,000 when considering any child support modification is a matter relating to child support and, therefore, modifiable by the district court. Additionally, the stipulation was unenforceable as against public policy. We conclude that the district court did not err by refusing to enforce the stipulation.

APPLICATION OF THE EXTENDED INCOME FORMULA

Next, Jaime contends the district court erred in calculating child support by applying the extended income formula. According to Jaime, the district court failed to consider what support should be awarded above the highest amount on the child support schedules and, instead, automatically applied the extended income formula. Thomas responds that this issue is not properly raised for the first time on appeal.

Our court reviews a district court's order determining the amount of child support for an abuse of discretion, while the district court's interpretation and application of the KCSG is subject to unlimited review. In re Marriage of Thomas , 49 Kan. App. 2d 952, 954, 318 P.3d 672 (2014). A judicial action constitutes an abuse of discretion if (1) no reasonable person would take the view adopted by the trial court; (2) it is based on an error of law; or (3) it is based on an error of fact. Wiles v. American Family Life Assurance Co. , 302 Kan. 66, 74, 350 P.3d 1071 (2015). An abuse of discretion occurs if discretion is guided by an erroneous legal conclusion or goes outside the framework of or fails to consider proper statutory limitations or legal standards. See Matson v. Kansas Dept. of Corrections, 301 Kan. 654, 656, 346 P.3d 327 (2015). As the party asserting the district court abused its discretion, Jaime bears the burden of showing that error. See Gannon v. State , 305 Kan. 850, 868, 390 P.3d 461 (2017).

The KCSG contains schedules which use the parents' combined gross monthly income to index values of child support obligations. KCSG § App. II. If the combined income exceeds the highest amount shown on the schedules-$15,500 a month-the district court should exercise its discretion by considering what amount of child support should be set in addition to the highest amount on the schedule. KCSG § III.B.3. (2019 Kan. S. Ct. R. 88). To assist the court in this discretionary task, the guidelines include a specific formula at the end of each child support schedule showing how to compute incomes above the amounts reflected in the schedules. KCSG § App. II. This method of calculating child support when parental monthly income exceeds the amounts in the schedules is the extended income formula.

During the hearing conducted by the hearing officer on Thomas' motion to modify child support, neither party discussed whether the extended income formula should apply or whether support above the highest amount on the schedule should be awarded. The hearing officer filed a journal entry with an attached child support worksheet that Thomas prepared. The worksheet revealed that the hearing officer used the extended income formula in calculating Jaime's $2,167 monthly child support obligation. There was no explanation, however, regarding the hearing officer's decision to employ the extended income formula.

After the journal entry was filed, Jaime moved for review by the district court. In her motion for review, Jaime claimed the hearing officer erred by applying the extended income formula without considering the best interests of the children. The district court affirmed the hearing officer's child support ruling without discussing Jaime's argument regarding application of the extended income formula.

Issues not raised before the hearing officer may not be raised on appeal. Mid-West Painting, Inc. v. State Employment Security Bd. of Review , 26 Kan. App. 2d 266, 269, 984 P.2d 146 (1999). Jaime argues that she objected to the use of the extended income formula "the instant the subject arose" in her motion for review.

Contrary to Jaime's assertion, however, the issue of whether the extended income formula should be applied in calculating child support was evident during the proceedings before the hearing officer. In her answer to Thomas' motion to modify child support, Jaime suggested the combined parental monthly income was above the highest amount on the schedules. And during the hearing on Thomas' motion, both parties acknowledged that the combined parental monthly income was above $17,000 and above the highest amount listed on the schedules. Although it was apparent that under the circumstances the extended income formula was a factor in the child support modification dispute, Jaime failed to raise this issue before the hearing officer.

Moreover, a party must object to inadequate findings and conclusions of law to preserve an issue for appeal. Such an objection necessarily affords the lower court with an opportunity to correct any claimed inadequacies. McIntyre v. State , 305 Kan. 616, 618, 385 P.3d 930 (2016). When no objection is made, an appellate court may presume the lower court found all facts necessary to support its judgment. State v. Dern , 303 Kan. 384, 394, 362 P.3d 566 (2015).

Thomas sent a proposed journal entry to Jaime under Supreme Court Rule 170 (2019 Kan. S. Ct. R. 222), which used the extended income formula to calculate the parties' child support obligations. Jaime did not object to the proposed journal entry and the hearing officer signed and filed it. As a result, Jaime failed to preserve this issue for appeal. See Burcham v. Unison Bancorp, Inc. , 276 Kan. 393, 402-03, 77 P.3d 130 (2003) ; In re Estate of Lentz , No. 118,307, 2019 WL 494098, at *8-9 (Kan. App. 2019) (unpublished opinion), petition for rev. filed March 8, 2019. Accordingly, we decline to review this issue.

ATTORNEY FEES

Jaime also contends the district court erred by not awarding her attorney fees as provided by the Agreement. Thomas responds that Jaime was not entitled to attorney fees because she was not the prevailing party.

A court may not award attorney fees absent statutory authority or an agreement by the parties. Snider v. American Family Mut. Ins. Co. , 297 Kan. 157, 162, 298 P.3d 1120 (2013). Whether the district court has the authority to award attorney fees is a question of law subject to unlimited review. Rinehart v. Morton Buildings, Inc ., 297 Kan. 926, 942, 305 P.3d 622 (2013). Additionally, this court exercises unlimited review over the interpretation and legal effect of written instruments. Prairie Land Elec. Co-op v. Kansas Elec. Power Co-op , 299 Kan. 360, 366, 323 P.3d 1270 (2014).

In the Agreement, Thomas and Jaime agreed that, in an action for breach of the Agreement, the prevailing party may recover reasonable attorney fees and litigation costs. The provision stated in relevant part:

"Breach of this Agreement and Attorney Fees. In the event that either party to this Agreement brings an action for failure to perform any of the obligations imposed by the Agreement on him or her, or for enforcement or clarification of the Agreement, the prevailing party in such action shall have the right to recover his or her reasonable attorney's fees and litigation costs reasonably expended in prosecuting or defending the action."

The problem with Jaime's argument is two-fold. First, neither party brought an action for enforcement, breach, or clarification of the Agreement. Instead, Thomas filed an action to modify child support and Jaime invoked provisions in the Agreement to defend against the modification action. As a result, this litigation did not trigger the provision mandating payment of attorney fees.

Second, Jaime was not entitled to attorney fees under this provision because she is not the "prevailing party" in the action. "With respect to the specific question of attorney fees, it has been stated a prevailing party is the person who has an affirmative judgment rendered in his or her favor at the conclusion of the entire case." Curo Enterprises v. Dunes Residential Services, Inc. , 51 Kan. App. 2d 77, Syl. ¶ 6, 342 P.3d 948 (2015). In other words, the party in whose favor the decision or verdict is rendered and judgment entered is the prevailing party.

As discussed in this opinion, Jaime did not prevail before the hearing officer or the district court. Because she was not the prevailing party, she was not entitled to attorney fees under the Agreement's provision.

After oral arguments, Jaime also filed a motion for appellate attorney fees under Supreme Court Rule 7.07(b) (2019 Kan. S. Ct. R. 50). Thomas filed a response opposing the motion. Supreme Court Rule 7.07(b)(1) (2019 Kan. S. Ct. R. 51) generally provides that an appellate court "may award attorney fees for services on appeal in a case in which the district court had authority to award attorney fees." Additionally, our Supreme Court has stated: " Rule 7.07(b) applies to all requests for attorney fees related to an appeal, whether authorized under ... [a] statute, or by an agreement between the parties." Snider , 297 Kan. at 163. Jaime asserts the Agreement's attorney fees provision and K.S.A. 2018 Supp. 23-2715, both permit our court to award her attorney fees related to this appeal.

As we have just discussed above we are persuaded that the Agreement did not provide a basis for Jaime to recover her attorney fees in this litigation. The terms of the attorney fees provision do not permit an award of attorney fees under the circumstances, and regardless, Jaime did not prevail on appeal. Finally, while attorney fees may be awarded "as justice and equity require" under K.S.A. 2018 Supp. 23-2715, given our holding, we are unable to make those findings in order to award Jaime appellate attorney fees in this case. Accordingly, Jaime's motion for an award of appellate attorney fees is denied.

IMPUTATION OF $52,500 AS THOMAS' GROSS INCOME

Finally, in his appellee's brief, Thomas asks our court to find that the hearing officer and district court erred when they arbitrarily imputed a wage of $52,500 per year as Thomas' gross income for purposes of calculating child support. This figure represents the difference between the $30,000 and $75,000 amounts that Thomas and Jaime submitted as appropriate income figures. Thomas asserts the hearing officer and district court "should have accepted the only evidence presented, his 2014 income tax return showing an adjusted gross income of $24,243.00 and his 2015 income tax return showing an adjusted gross income of $28,353[.]00." Jaime responds that this court lacks jurisdiction over this issue because Thomas failed to cross-appeal the district court's order.

Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. In re Care & Treatment of Emerson , 306 Kan. 30, 34, 392 P.3d 82 (2017). K.S.A. 2018 Supp. 60-2103(h) requires an appellee to file a notice of cross-appeal from adverse rulings to obtain appellate review of those issues. Lumry v. State , 305 Kan. 545, 553-54, 385 P.3d 479 (2016). If an appellee fails to file a cross-appeal, the issue is not properly before the appellate court and may not be considered. Cooke v. Gillespie , 285 Kan. 748, 755, 176 P.3d 144 (2008).

Thomas' failure to pursue a cross-appeal creates a jurisdictional bar preventing our court from reviewing the district court's decision imputing a wage of $52,500 per year as Thomas' gross income for purposes of calculating child support. See Lumry , 305 Kan. at 555. This issue is dismissed.

Affirmed in part and dismissed in part. Motion for appellate attorney fees is denied.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    STATE of Kansas, Appellee, v. Ernest L. GAINES, Appellant.
    Nos. 118 998 119,000 119,001 119,162
    Court of Appeals of Kansas.
    Opinion filed July 5, 2019.
    Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant, and Ernest Gaines, appellant pro se.
    Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellant.
    Before Buser, P.J., Pierron and Bruns, JJ.
    MEMORANDUM OPINION
   Per Curiam:

Ernest L. Gaines appeals his multiple convictions in four consolidated cases. On appeal, Gaines contends that the district court erred when it denied his motion to withdraw his plea. Gaines also asserts that the district court failed to properly investigate a possible conflict between him and his attorney. Finally, Gaines contends that the district court erred when it denied his motion to add certain documents to the record. For the reasons set forth in this opinion, we affirm.

FACTS

This consolidated appeal involves four criminal cases filed in Sedgwick County District Court. Although there was no plea agreement, Gaines entered guilty pleas on all of the following charges on February 12, 2015:

Case No. 14-CR-2623

One count of burglary in violation of K.S.A. 2014 Supp. 21-5807(a)(2), (c)(1)(B) and one count of theft after a prior conviction in violation of K.S.A. 2014 Supp. 21-5801(a)(1), (b)(6).

Case No. 14-CR-2774

Four counts of burglary in violation of K.S.A. 2014 Supp. 21-5807(a)(2), (c)(1)(B), seven counts of theft after a prior conviction in violation of K.S.A. 2014 Supp. 21-5801(a)(1), (b)(6), and one count of burglary in violation of K.S.A. 2014 Supp. 21-5807(a)(3), (c)(1)(C).

Case No. 14-CR-2805

One count of theft in violation of K.S.A. 2014 Supp. 21-5801(a)(4), (b)(3).

Case No. 14-CR-2918

One count of unlawfully tampering with electronic monitoring equipment in violation of K.S.A. 2014 Supp. 21-6322(a).

On May 18, 2015, Gaines filed a motion seeking a dispositional departure, which was subsequently denied by the district court. Two days later, the district court held a sentencing hearing. At the hearing, Gaines asked the district court to impose restitution and probation. After considering the recommendations, the district court sentenced Gaines to 29 months of incarceration in 14CR02623, to 29 months in 14CR02774, to 13 months in 14CR02805, and to 38 months in 14CR02918. The district court imposed these sentences to run consecutively for a total of 109 months.

Gaines timely appealed on May 27, 2015. After filing his notice of appeal, Gaines filed a pro se "Motion to Withdraw Plea Due to Ineffective Assistance of Counsel" in all four cases. On September 16, 2015, the district court denied Gaines' motion. In doing so, the district court explained:

"[T]he appellate courts now having jurisdiction of [Gaines'] four cases, this Court declines to exercise concurrent jurisdiction of [Gaines'] cases, absent an order by the appellate courts to entertain [Gaines'] motion.
"As such, [Gaines'] motion is dismissed."

The four cases were consolidated for appeal on October 7, 2015. However, the Kansas Supreme Court took the appeal. In an order issued on March 21, 2016, our Supreme Court summarily affirmed Gaines' sentences under Supreme Court Rule 7.041A(d) (2015 Kan. Ct. R. Annot. 67). A mandate was issued on June 29, 2016.

On August 12, 2016, Gaines filed a "Motion to Withdraw Guilty Plea Due to Ineffective Assistance of Counsel Request to Vacate/Set Aside Sentence Pursuant to K.S.A. 22-3210(d)" in district court. In the motion, which is the subject of this appeal, Gaines requested "an order allowing him to withdraw his plea as provided for in K.S.A. 22-3210 and allow him to enter a not guilty plea and have the matter set for jury trial in accordance with U.S. Supreme Court finding Missouri v. Frye [,] 132 S. Ct. 1399 (2012) [.]"

The district court held an evidentiary hearing on the motion to withdraw plea on March 14, 2017. At the hearing, Gaines testified that prior to the preliminary hearing in the underlying cases, he and his trial attorney, Quentin Pittman, engaged in some plea negotiations with the State. Although the record is unclear regarding the specifics, the State evidently indicated a willingness at one point to agree to recommend an 85-month sentence with Gaines being free to argue for probation. According to Gaines, prior entering his plea, Pittman told him "that there was a 61-month plea written agreement that was no longer available." Under the terms of 61-month offer, Gaines would not have been able to argue for probation.

Although Gaines admitted that he agreed to plead guilty even though there was "no plea agreement" in place, he testified that he never made a decision to accept or reject any plea deals offered by the State. Gaines admitted that his memory was "fuzzy" on the subject. However, he indicated that he believed that Pittman told him that he would receive a total sentence of 61 months. He also suggested that there was some discussion involving the use of an ankle monitor once he was released. Gaines estimated that he spoke with Pittman regarding plea negotiations four times.

When the district court noted that Gaines signed an "Acknowledgment of Rights and Entry of Plea," Gaines replied that he could not "say [he] agreed with that." Nevertheless, he acknowledged that he did not have a plea agreement. On cross-examination, Gaines testified that he told Pittman that he wanted probation and to pay restitution in any plea. Then, this exchange occurred concerning Gaines and the prosecutor in the case, Assistant District Attorney Avery Elofsson:

"Q: Okay. And based on what you heard from Mr. Elofsson at the sentencing hearing about the possibility of there being other deals, is that what is causing you to believe that Mr. Pittman didn't present other deals to you?
"A: Well, yeah, that's the first indication that [Elofsson] said that there were in fact other ones, and he said he wasn't gonna argue that there-that there were not, apparently. That's what he said.
....
"A: And then [Elofsson]'s the one that brought it to light that there were other offers.
"Q: Okay. Do you know what the content of those offers were?
"A: He said there was something that was offering probation, free to argue, something for 85 months, and then he said something to the effect that there were some transmitted in email as well and some were reduced to paper.
"Q: And this was at the sentencing hearing?
"A: That's correct.
"Q: Okay. Isn't it true that you told Mr. Pittman that you wouldn't accept a deal that included prison time instead of probation?
"A: That is not true."

Pittman also testified at the hearing. He indicated that he spoke with Assistant District Attorney Elofsson and "attempted to work something out." However, the negotiations were unsuccessful. According to Pittman, Gaines told him "his number one goal was he wanted to get probation." Pittman explained to the district court that due to Gaines' past criminal history, lack of an alibi, and how "forthcoming" Gaines was with his participation in the crimes, he did not believe that he had "great bargaining power."

Pittman also explained that the assistant district attorney offered a plea deal for "five years in prison" because "the cops wanted [Gaines] off the street" due to his long criminal record. According to Pittman, Elofsson told him that "he was not going to give [Gaines] probation, and that was his plea offer." Pittman then attempted to discuss the matter with Elofsson's superior, who also told him that "too many cops [were] complaining about [Gaines], and that's it. We're not gonna make another deal."

Pittman testified that he presented the "only plea offer [they] got" to Gaines. This offer was reduced to writing. Pittman further testified that after showing Gaines the written plea offer, Gaines took the position that "he wasn't gonna enter a plea unless it was a plea for probation." When asked if Gaines rejected the offer, Pittman testified:

"A: Yes. He absolutely, categorically was not going to accept their plea offer of 61 months. And in fact, after he rejected it, as I was leaving the jail, I happened to run into Robert Short [, Elofsson's superior,] and had a brief conversation with him about that, ... I was trying to get the best deal I could for Mr. Gaines.
"Q: Okay. That conversation ... did that affect how you proceeded in the case?
....
"A: Yes, it did.
"Q: Okay. What did-what effect did it have on how you proceeded?
"A: We were not gonna get another plea offer."

After Gaines rejected the deal, Pittman suggested to Gaines that he consider entering a plea without an agreement. In other words, Pittman suggested that Gaines accept responsibility and "throw [himself] on the mercy of the court." Pittman testified that this strategy worked in another case before the same district court judge. Pittman also explained that he discussed the options with Gaines on several occasions.

Specifically, Pittman testified that he discussed three options with Gaines: (1) the option of the 61-month deal, assuming the district court would follow the recommendation; (2) pleading with no deal, which could potentially result in probation, or; (3) not enter a plea at all and go to trial. According to Pittman, Gaines chose the option to plead without an agreement in the hope of getting probation. In addition, Pittman testified that "[t]here was no other deal offered ever to us except the written plea offer that I presented to my client." Pittman also denied ever rejecting a deal without asking Gaines' permission to do so.

On April 18, 2017, the district court denied Gaines' motion, finding that he "failed to meet the requirements of Frye as it relates to, at minimum, showing there is a reasonable probability that the trial court would have implemented the plea offer." The district court explained that under Frye

"defense counsel has the duty to communicate formal prosecution offers to accept a plea on terms and conditions that may be favorable to the accused. To show prejudice where a plea offer has lapsed or been rejected because of counsel's deficient performance, the defendant must demonstrate a reasonable probability both that they would have accepted the more favorable plea offer had they been afforded effective assistance of counsel and that the plea offer would have been entered without the prosecution's canceling it or the trial court's refusing to accept it, if the trial court had the authority to exercise that discretion under state law."

The district court found that in this case, there had been a 61-month controlling sentence plea offer in which Gaines would not have been able to argue for probation. In addition, the district court found that there was an 85-month plea offer, where Gaines would have been able to argue for probation. The district court found that the 85-month offer was more favorable than the 61-month offer and that Pittman "failed to communicate [this offer] to Mr. Gaines."

Nevertheless, the district court found that Gaines failed to meet his burden of proving that there was a reasonable probability that the district court would have granted probation or imposed a sentence of 85 months or less. In reaching these conclusions, the district court found:

1. "Mr. Gaines did not want prison time. He wanted probation to be granted and was willing to pay restitution."
2. "Mr. Gaines' number one goal is that he wanted to get probation."
3. "[T]he State was not going to recommend probation."
4. "Mr. Gaines was not going to enter a plea pursuant to a plea bargain unless it was a plea for probation."
5. "Mr. Gaines' position was that he would not enter a plea with the State of Kansas unless they were recommending probation. So there never was a plea offer communicated to Mr. Pittman where the State was recommending probation. So[,] assuming that Mr. Gaines would have accepted the first plea offer, which was a State's recommendation of 85 months with the defense being free to argue for probation, assuming he would have accepted that without finding so, the Court that imposed the sentence, which was me, would not have granted probation ... and would not have imposed a sentence for 85 months or lower."

Gaines filed the present appeal on April 19, 2017. The following month, Gaines filed a "Motion to Amend and Supplement Pleadings for Amended and Additional Findings." The district court denied this motion on May 8, 2017, noting that Gaines "had his opportunity at his evidentiary hearing on March 4, 2017 to present any and all evidence that he and his counsel deemed relevant.... To the extent that [Gaines'] motion is procedurally permissible (if at all) pursuant to K.S.A. 60-260(b), none of the grounds listed therein apply.... [Gaines'] appellate counsel should pursue this additional adverse ruling to [Gaines] at the appellate level."

Thereafter, Gaines filed another pro se notice of appeal for "all adverse rulings, findings of fact and conclusions of law rendered against him May 8th, 2017[.]" The four cases were later consolidated for appeal by this court. Gaines' appellate counsel filed a brief on his behalf in which it was asserted that the district court abused its discretion in denying the motion to withdraw his plea. Subsequently, Gaines was granted leave to file a pro se supplemental brief that has also been considered by this court. In his supplemental brief, Gaines asserted that the district court also abused its discretion by failing to inquire further about an alleged conflict of interest as well as by denying his motion to amend and supplement pleadings.

ANALYSIS

Denial of Motion to Withdraw Plea

The first issue presented is whether the district court erred when it denied Gaines' motion to withdraw his plea. In support of his contention that the district court abused its discretion, Gaines argues that (1) his trial counsel "provided inadequate advocacy"; (2) his "[p]lea was not fairly and freely made"; (3) he "was misled, coerced and taken advantage of" in entering his plea; and (4) his plea was not voluntarily and understandably made.

K.S.A. 2018 Supp. 22-3210(d)(2) provides: "To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea." Where there has been an evidentiary hearing, as in the present case, we will not disturb a district court's denial of a postsentence motion to withdraw plea absent an abuse of discretion. State v. Johnson , 307 Kan. 436, 443, 410 P.3d 913 (2018). Judicial discretion is abused only when (1) no reasonable person would take the view adopted by the trial court; (2) the district court based its decision on an error of law; or (3) the district court based its decision on an error of fact. State v. Marshall , 303 Kan. 438, 445, 362 P.3d 587 (2015). The party asserting the trial court abused its discretion bears the burden of showing such abuse of discretion. State v. Robinson , 303 Kan. 11, 90, 363 P.3d 875 (2015), disapproved in part on other grounds by State v. Cheever , 306 Kan. 760, 402 P.3d 1126 (2017).

In support of his argument that his trial counsel provided ineffective counsel by not telling him about an 85-month plea offer, Gaines cites Missouri v. Frye , 566 U.S. 134, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012), and Lafler v. Cooper , 566 U.S. 156, 164, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012). In Lafler , the United States Supreme Court held:

"In these circumstances [where the ineffective assistance of counsel resulted in the defendant rejecting a plea offer] a defendant must show [ (1) ] that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e. , that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), [ (2) ] that the court would have accepted its terms, and [ (3) ] that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and the sentence that in fact were imposed." Lafler , 566 U.S. at 164.

Here, the district court found that there were two plea offers made by the State. One was an offer for a "61-month controlling sentence" with no ability to argue for probation and the other was for a recommendation by the State for "85 months and [Gaines] would be free to argue for probation." The district court also found that the 85-month offer was more favorable to Gaines than the 61-month offer because he would have been free to argue for probation at sentencing. In addition, the district court found that trial counsel "failed to communicate that to ... Gaines." Thus, it appears that Gaines has met the first prong of the Lafler test.

In its findings, the district court skipped from the first prong of the Lafler analysis to the third prong. In concluding that Gaines failed to meet the third prong of the analysis, the district court stated:

"Skipping a step in the analysis at this juncture but going to the final prong, did ... Gaines meet his burden that there was a reasonable probability that the trial court basically would have either granted probation or imposed a sentence of 85 months or lower? No.... [Gaines] failed to meet [his] burden.
....
"... Mr. Gaines did not want prison time....
"... Gaines' number one goal is that he wanted to get probation.
"... [T]he State was not going to recommend probation for Mr. Gaines....
"... Gaines was not going to enter a plea pursuant to a plea bargain unless it was a plea for probation.
....
"... Gaines' position was that he would not enter a plea with the State ... unless they were recommending probation. So there never was a plea offer communicated to ... Pittman where the State was recommending probation. So assuming that ... Gaines would have accepted the first offer, which was a State's recommendation of 85 months with [Gaines] being free to argue for probation, assuming he would have accepted that without finding so, the Court that imposed the sentence, which was me, would not have granted probation, number one, and would not have imposed a sentence of 85 months or lower. " (Emphasis added.)

The district court found that based on the evidence it was doubtful that Gaines would have agreed to accept the plea offer for a recommendation of 85 months with the right to argue for probation, stating:

"Because of my earlier factual findings where ... Gaines was adamant that he wanted probation and a recommendation of probation, it's suspect whether he would have even accepted a recommendation by the State of 85 months wherein he is free to argue for probation. And why do I say that? ... The reason why it's suspect that ... Gaines would have accepted that first plea offer is [be]cause ... Pittman in his testimony says oftentimes in his experience in dealing with plea offers where the State's gonna recommend a certain sentence of incarceration but the defense is free to argue for a lesser sentence or whatever they want, ... Pittman says it doesn't seem that the Court cares in that the Court typically just follows the State's recommendation.... But for argument's sake, I will just assume that ... Gaines would have accepted a sentence recommendation by the State of 33 percent more than the offer that only he was aware of, the 61 months, but the difference being that he was free to argue for probation. So assuming that he accepts it, would this Court have imposed a sentence of 85 months or less, because that is the issue? [Be]cause ... Gaines is arguing that-and I'm just assuming that if he would have accepted the first plea offer, he is saying, Judge, the worst case scenario I would have gotten is 85 months from the Court, and you gave me 109 months. But ... Gaines does not meet his burden in that regard, ... that I would have given 85 months: ... First of all, the State was recommending at sentencing, ironically, a sentence of even less than 61 months, which was the only plea offer that ... Gaines was aware of, which never occurred. The State was recommending a sentence ... less than 61 months....
"Yes. So the State [was] asking for 54 months.... And I d[id]n't follow the State's recommendation. I d[id]n't follow the defense recommendation. What I order[ed] [was] ... all cases are consecutive. That resulted in a sentence of 109 months."

The district court also cited Gaines' "long-standing criminal history, the impact on the community, [and] the number of victims in all the cases." Also, the district court cited to the fact that Gaines committed several crimes during postrelease and that his presentence investigation report (PSI) included 45 entries. In particular, the district court pointed out that the PSI listed all "nontraffic-related crime[s] or DUI[s]" and that many of the entries included multiple counts. Accordingly, the district court reiterated that Gaines' criminal history warranted the "maximum consecutive" sentence.

The district court then concluded its comments by saying:

"Pittman was deficient in that he did not communicate to ... Gaines that the first plea offer, which was [the] 85 months recommendation by the State and the defense is free to argue for anything else, including probation, but that doesn't change the equation, because even assuming ... Gaines would have accepted that, this court would not have imposed a sentence of ... 85 months or less [.]"

As such, the district court explicitly found that it would not have granted probation and would have imposed the same sentence. Because the district court explained that it would not have accepted the plea terms and would have imposed the same sentence, Gaines fails on both the second and third prong of the Lafler analysis. Moreover, based on our review of the record, we find that the district court's findings and conclusions were reasonable based on the evidence presented.

Gaines also argues that his plea was not "fairly and freely made." However, Gaines does not once cite to the record in support of this argument nor does he cite any pertinent caselaw to support his claim. Issues not adequately briefed are deemed waived or abandoned. State v. Arnett , 307 Kan. 648, 650, 413 P.3d 787 (2018). A point raised incidentally in a brief and not argued therein is also deemed abandoned. State v. Sprague , 303 Kan. 418, 425, 362 P.3d 828 (2015). Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. State v. Pewenofkit , 307 Kan. 730, 731, 415 P.3d 398 (2018).

Nevertheless, a review of the record reveals that Gaines has failed to show that his decision to plead was not "fairly and freely made." Of course, whether to plea or go to trial is often a gamble and involves many factors. See Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2507 (2004) ("The decision to go to trial is a gamble: the payoff can be acquittal and complete freedom, but often the more likely outcome is conviction and a longer sentence."). So, Gaines faced a situation familiar to many criminal defendants. Furthermore, at the time he entered his plea, the district court properly explained the potential consequences of him pleading guilty and Gaines' decided to go forward.

Gaines' next argument is that he was misled or coerced into entering a plea. Again, Gaines fails to cite the record nor does he cite any caselaw to support his claim. In fact, his entire argument is only a few sentences long and is somewhat difficult to follow. Consequently, Gaines waives this issue on appeal as well. See Arnett , 307 Kan. at 650 ; Sprague , 303 Kan. at 425.

Finally, Gaines argues that his plea was not freely, voluntarily, and understandably made. According to Gaines, "[o]ne of the rights that [he] had in this case was the right to engage in plea negotiations with the [S]tate and enter into mutually agreed upon plea agreements." However, as the State points out, this argument is based on speculation. There is nothing in the record to suggest that the State would have ever offered a plea deal that would have been acceptable to Gaines because he was adamant about receiving probation. Likewise, Gaines' argument ignores the fact that even if he had known about and accepted the 85-month-sentence offer-a proposition the district court seriously doubted based on the evidence presented-the results would have been the same. The district court was very clear in its ruling that because of Gaines' long criminal history-which the district court noted was so lengthy "that the PSI department [stopped listing all of Gaines' criminal history because it] wanted to save paper"-that it would have still imposed the 109-month sentence.

We, therefore, conclude that the district court did not abuse its discretion in denying Gaines' postsentence motion to withdraw plea.

Conflict of Interest Allegation

Next, Gaines contends in his pro se supplemental brief that the district court erred by failing to inquire into a potential conflict of interest between he and his trial counsel. Evidently, Gaines is asserting that a conflict existed over the way in which his trial counsel was conducting plea negotiations. According to Gaines, the testimony presented at the hearing on the motion to withdraw plea should have been sufficient to place "the district court on notice of the nature of the potential conflict and triggered the court's duty to further inquire." Alternatively, Gaines asserts, "the district court had notice of that potential when the sentencing judge explicitly advocated that the record indicates that ... Gaines was misinformed by his attorney during the plea negotiation phase."

Here, even if we were to assume that there was a conflict between Gaines and his trial attorney, the record reflects that the district court appointed a conflict-free counsel to represent him at the evidentiary hearing to explore the underlying facts relating to the plea negotiations. Specifically, the district court appointed Michael C. Brown to represent Gaines on August 12, 2016. Similarly, the district court has appointed conflict-free counsel to represent Gaines in this appeal. Accordingly, we do not find this to be a case in which the court failed to protect Gaines' right to conflict-free counsel.

Application of K.S.A. 2016 Supp. 60-215(b)(2)

Gaines' last contention is that the district court erred in denying his "Motion to Amend and Supplement Pleadings." In particular, he argues that the district court violated K.S.A. 2016 Supp. 60-215(b)(2). Of course, this statute is part of the Kansas Code of Civil Procedure. See State v. Perez , 267 Kan. 543, 547, 987 P.2d 1055 (1999). This statute simply does not apply to criminal proceedings. Thus, the district court did not err in dismissing Gaines' "Motion to Amend and Supplement Pleadings for Amended and Additional Findings."

Affirmed.


author: Powell, J.:

text:
    STATE of Kansas, Appellee, v. Troy Allen HELZER, Appellant.
    No. 120,208
    Court of Appeals of Kansas.
    Opinion filed July 5, 2019
    MEMORANDUM OPINION
   Powell, J.:

Troy Helzer appeals the district court's revocation of his probation and imposition of his prison sentence. We granted Helzer's motion for summary disposition pursuant to Supreme Court Rule 7.041A (2019 Kan. S. Ct. R. 47). The State filed a response not objecting to summary disposition but asking that the district court's judgment be affirmed.

In December 2016, Helzer was sentenced in three cases. In 16CR500, for one count of possession of methamphetamine, the district court imposed a sentence of 20 months in prison, with 12 months of postrelease supervision, but placed Helzer on probation from that sentence for 18 months. In 16CR886, for one count of misdemeanor possession of stolen property, the district court imposed a sentence of 12 months in the county jail but placed Helzer on probation from that sentence for 12 months. And in 16CR945, for one count of aggravated failure to appear, the district court imposed a sentence of 7 months in prison, with 12 months of postrelease supervision, but placed Helzer on probation from that sentence for 12 months.

In March 2017, the district court imposed a six-day jail sanction due to Helzer violating his probation. In October 2017, Helzer again violated his probation, and the district court extended his probation in all three cases for 18 months and imposed a 120-day prison sanction.

In December 2017, the State sought to revoke Helzer's probation, alleging that he had violated the terms and conditions of his probation by, among other things, failing to appear in drug court, failing to report to his probation officer, and committing new crimes. The State later alleged Helzer had absconded from supervision after Kentucky law enforcement arrested him in May 2018 for possession of drug paraphernalia. At the probation violation hearing conducted in September 2018, Helzer stipulated to these violations but asked for drug treatment and a jail sanction instead of revocation. The district court rejected Helzer's request, revoked his probation, and imposed the underlying prison sentences.

Helzer's sole argument on appeal is that the district court abused its discretion by revoking his probation and imposing the prison sentences. However, while the case was pending on appeal, the State filed a custodial status notification indicating that Helzer had completed his prison sentence as of April 12, 2019, and was currently on postrelease supervision. We issued a show cause order directing Helzer to explain why the case should not be dismissed as moot. Helzer did so, arguing that his appeal is not moot because he remains on postrelease supervision.

As a general rule, appellate courts do not decide moot questions or render advisory opinions. Rather, our role is to " ' "determine real controversies relative to the legal rights of persons or properties which are actually involved in the particular case." ' " State v. Montgomery , 295 Kan. 837, 840, 286 P.3d 866 (2012). To be a real controversy, the case must involve "definite and concrete issues ... with adverse legal interests that are immediate, real, and amenable to conclusive relief." State ex rel. Morrison v. Sebelius , 285 Kan. 875, 890-91, 179 P.3d 366 (2008). If it is clearly and convincingly shown that (1) the actual controversy has ended, (2) the entry of judgment would be ineffectual for any purpose, and (3) a judgment would have no impact on any of the rights of the parties, then the case must be dismissed as moot. McAlister v. City of Fairway , 289 Kan. 391, 400, 212 P.3d 184 (2009).

Here, it would appear that we lack the authority to grant Helzer's request that he be placed back on probation and given an additional sanction because Helzer has already served his prison sentence. Probation operates as a substitute for a term of imprisonment and therefore cannot be imposed if the underlying prison sentence has been completed. See State v. Kinder , 307 Kan. 237, 243-44, 408 P.3d 114 (2018). Moreover, any additional intermediate sanctions imposed cannot be longer than the time remaining on the defendant's prison sentence. K.S.A. 2018 Supp. 22-3716(c)(7). Because Helzer has already served his prison sentence, he cannot be subject to any short-term intermediate sanction or have his probation reinstated. While it is true that Helzer would not be on postrelease supervision if his probation had not been revoked, that is not enough to turn this case into a real controversy given that the relief he seeks cannot be granted by us.

Alternatively, even if the case were not moot, Helzer's appeal would still be without merit. Once a probation violation has been established, the decision to revoke probation is within the sound discretion of the district court. See State v. Skolaut , 286 Kan. 219, 227, 182 P.3d 1231 (2008). Judicial discretion is abused if the action "(1) is arbitrary, fanciful, or unreasonable, i.e. , if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law ... ; or (3) is based on an error of fact." State v. Jones , 306 Kan. 948, Syl. ¶ 7, 398 P.3d 856 (2017). Helzer bears the burden to show an abuse of discretion by the district court. See State v. Rojas-Marceleno , 295 Kan. 525, 531, 285 P.3d 361 (2012).

A district court's discretion on whether to revoke probation is limited by intermediate sanctions as outlined in K.S.A. 2018 Supp. 22-3716. A district court is required to impose graduated intermediate sanctions before revoking an offender's probation. See K.S.A. 2018 Supp. 22-3716(c) ; State v. Huckey , 51 Kan. App. 2d 451, 454, 348 P.3d 997, rev. denied 302 Kan. 1015 (2015). However, there are exceptions which permit a district court to revoke a defendant's probation without having previously imposed the statutorily required intermediate sanctions. One exception allows the district court to revoke probation if the offender commits a new crime while on probation; another is when the defendant absconds from supervision. See K.S.A. 2018 Supp. 22-3716(c)(8)(A), (B).

Here, Helzer does not challenge the district court's authority to revoke his probation, only that it abused its discretion by doing so. Given Helzer's repeated probation violations, which included absconding and committing new crimes, he fails to persuade us that no reasonable person would have agreed with the district court's decision to revoke his probation and order that he serve his underlying sentence.

Appeal dismissed.


text:
    STATE of Kansas, Appellee, v. Stephen Montreal DUNN, Appellant.
    No. 119,866
    Court of Appeals of Kansas.
    Opinion filed July 5, 2019.
    Peter Maharry, of Kansas Appellate Defender Office, for appellant.
    Rachel L. Pickering, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
    Before Schroeder, P.J., Green and Powell, JJ.
    MEMORANDUM OPINION
   Per Curiam:

Stephen Montreal Dunn appeals the sentence the Montgomery County District Court imposed for his conviction of rape. Dunn claims the district court erred because it imposed lifetime postrelease supervision, electronic monitoring of that supervision, and it failed to grant him good time credit. For the first time on appeal, the State claims the district court imposed an illegal sentence by departing more than 50 percent from a standard guideline sentence under the Kansas Sentencing Guidelines Act (KSGA). The State is correct. The sentence must be vacated.

Dunn is also partially correct. The district court erred in not granting him good time credit and by imposing lifetime postrelease electronic monitoring. Even so, the district court did not err by imposing lifetime postrelease supervision. We affirm in part, vacate the sentence, and remand with directions for resentencing.

FACTS

The State charged Dunn with the statutory rape of a 12-year-old girl which occurred when he was 18 years of age. After plea negotiations, Dunn entered a no contest plea to the rape charge and the State dismissed unrelated criminal charges in another case. Dunn also agreed to pay restitution for the dismissed charges. At the plea hearing, the State referenced an addendum to the plea agreement requiring Dunn to register as a sex offender for the rest of his life. Dunn acknowledged he was aware of this addendum.

Before sentencing, Dunn moved for a dispositional and durational sentencing departure. At the sentencing hearing, the district court granted Dunn's request, departed from the presumptive life sentence to the sentencing grid, and further reduced the sentence from the applicable grid penalties to 78 months' imprisonment. The court based the departure on Dunn's young age when he committed the offense, the desire of the victim's family to see a lesser sentence imposed, the victim's willing participation in the sexual intercourse, and the court's belief Dunn's remorse was heartfelt and sincere. The court originally ordered Dunn to serve 60 months of postrelease supervision. The State objected, and the court continued the sentencing hearing so the parties could brief the issues of applicable postrelease supervision period and good time credit.

After receiving briefs from the parties, the district court reconvened the sentencing hearing and imposed lifetime postrelease supervision with lifetime electronic monitoring. The court also found Dunn was not entitled to good time credit.

ANALYSIS

Dunn's departure sentence is illegal

The State contends the sentence imposed by the district court constituted an illegal sentence. The State neither raised the issue in the district court nor filed a separate appeal from the judgment imposed by the district court. Typically, the lack of a timely notice of appeal would deprive this court of jurisdiction over the issue. See State v. Sanchez-Loredo , 294 Kan. 50, 53, 272 P.3d 34 (2012) (citing Douglas v. Lombardino , 236 Kan. 471, 490, 693 P.2d 1138 [1985] ). But the Kansas Supreme Court has authorized the State to challenge the legality of Dunn's sentence because a party that did not take an appeal or file a motion to correct illegal sentence may still challenge a sentence's illegality during the other party's appeal. See State v. Spencer , 291 Kan. 796, 820, 248 P.3d 256 (2011) (citing State v. Gracey , 288 Kan. 252, 260-61, 200 P.3d 1275 [2009] ); see also K.S.A. 2018 Supp. 22-3504(a) (authorizing courts to correct an illegal sentence "at any time" while the defendant is serving such sentence).

An illegal sentence within the meaning of K.S.A. 2018 Supp. 22-3504(3) is a sentence imposed by a court without jurisdiction; a sentence that does not conform to the applicable statutory provisions, either in character or term of authorized punishment; or a sentence ambiguous with respect to the time and manner in which it is to be served. State v. Hayes , 307 Kan. 537, 538, 411 P.3d 1225 (2018). The State contends the sentence imposed upon Dunn by the district court failed to conform with the applicable statutory provisions, namely K.S.A. 2018 Supp. 21-6818(a), which states:

"When a departure sentence is appropriate, the sentencing judge may depart from the sentencing guidelines as provided in this section. The sentencing judge shall not impose a downward dispositional departure sentence for any crime of extreme sexual violence, as defined in K.S.A. 2018 Supp. 21-6815, and amendments thereto. The sentencing judge shall not impose a downward durational departure sentence for any crime of extreme sexual violence, as defined in K.S.A. 2018 Supp. 21-6815, and amendments thereto, to less than 50% of the center of the range of the sentence for such crime."

A crime of extreme sexual violence is statutorily defined to encompass "a crime involving an act of sexual intercourse, sodomy or lewd fondling and touching with any child who is less than 14 years of age." K.S.A. 2018 Supp. 21-6815(c)(2)(F)(i)(c). Statutory rape falls within this definition. See K.S.A. 2018 Supp. 21-5503(a)(3). Consequently, the district court was statutorily limited and could not reduce the durational departure sentence to less than 50 percent of the standard penalty within the applicable guidelines grid.

At sentencing, Dunn's criminal history score was H. When the district court departed to the sentencing grid block, the severity level of Dunn's crime became a severity level 1 person felony. See K.S.A. 2018 Supp. 21-5503(b)(1)(B) (sexual intercourse with a child under the age of 14 is a severity level 1 person felony without the aggravating factor of the offender's age). This placed Dunn in a sentencing grid box of 166-176-186 months. See K.S.A. 2018 Supp. 21-6804(a). Half the standard penalty within that grid box (176 months) is 88 months. By imposing a sentence less than 88 months, the district court violated K.S.A. 2018 Supp. 21-6818(a), rendering the sentence illegal. Dunn concedes as much in his reply brief. Consequently, the sentence must be vacated and we remand for resentencing.

Dunn's claims on appeal

We now turn to address Dunn's three issues on appeal. He first argues the district court erred in finding he was not entitled to good time credit based on his departure sentence. Second, he argues it was improper for the district court to impose lifetime electronic monitoring during his lifetime postrelease period of supervision. Third, he argues the district court erred in concluding it must impose lifetime postrelease supervision.

Dunn is entitled to good time credit

Dunn correctly contends the district court erred in ordering no good time credit be applied to his sentences. The State concedes this issue is controlled by State v. Ballard , 289 Kan. 1000, 1014, 218 P.3d 432 (2009).

"Here, Ballard received a departure sentence from Jessica's Law: a determinate sentence pursuant to the guidelines of 55 months' imprisonment. Consequently, when Ballard completes his prison sentence, he will be placed on postrelease supervision, not parole. Stated another way, he will not serve an indeterminate sentence and then be subject to parole, as he would have been if sentenced to life imprisonment pursuant to 21-4643(a). Because the provisions of 22-3717(b)(5) simply do not apply to Ballard, they cannot serve as the basis for denying him eligibility for good time credit." Ballard , 289 Kan. at 1014.

Ballard's and Dunn's sentences are analogous because both are durational departure sentences. This court is bound by the precedent set by Ballard . See State v. Meyer , 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). The district court erred when it denied Dunn the right to earn good time credit to his sentences.

Dunn is not subject to lifetime postrelease electronic monitoring

Dunn next challenges the district court's order imposing lifetime electronic monitoring during his postrelease supervision period. To consider this argument we must analyze the interplay of several sentencing statutes. The proper interpretation of statutes constitutes a question of law over which an appellate court exercises unlimited review. State v. Warren , 307 Kan. 609, 612, 412 P.3d 993 (2018). The fundamental goal of statutory construction is to give effect to the legislative intent of the statute. State v. Jordan , 303 Kan. 1017, 1019, 370 P.3d 416 (2016). Typically, this statutory intent is ascertained by giving ordinary meaning to the plain language of the statute. Only when a statutory provision is genuinely ambiguous should a court resort to canons of construction or legislative history to give meaning to the statute. State v. Barlow , 303 Kan. 804, 813, 368 P.3d 331 (2016).

K.S.A. 2018 Supp. 22-3717(u) provides:

"An inmate sentenced to imprisonment pursuant to K.S.A. 21-4643, prior to its repeal, or K.S.A. 21-6627, and amendments thereto, for crimes committed on or after July 1, 2006, shall be placed on parole for life and shall not be discharged from supervision by the prisoner review board. When the board orders the parole of an inmate pursuant to this subsection, the board shall order as a condition of parole that the inmate be electronically monitored for the duration of the inmate's natural life." (Emphasis added.)

Previously construing this provision, our Supreme Court has ruled lifetime electronic monitoring is not a function of the court but a function of the Kansas Prisoner Review Board (Board) in establishing conditions of parole. State v. Waggoner , 297 Kan. 94, 100, 298 P.3d 333 (2013) ("It is well established that although lifetime electronic monitoring is mandated by K.S.A. 2012 Supp. 22-3717(u), 'the sentencing court does not have the authority to impose parole conditions.' " [Quoting State v. Mason , 294 Kan. 675, 677, 279 P.3d 707 (2012) ] ). Neither Waggoner nor Mason refer to K.S.A. 2018 Supp. 21-6604(r), which reads:

"In addition to any other penalty or disposition imposed by law, for any defendant sentenced to imprisonment pursuant to K.S.A. 21-4643, prior to its repeal, or K.S.A. 2018 Supp. 21-6627, and amendments thereto, for crimes committed on or after July 1, 2006, the court shall order that the defendant be electronically monitored upon release from imprisonment for the duration of the defendant's natural life and that the defendant shall reimburse the state for all or part of the cost of such monitoring as determined by the prisoner review board." (Emphasis added.)

Based on a plain reading of the two statutes, K.S.A. 2018 Supp. 21-6604(r) irreconcilably conflicts with K.S.A. 2018 Supp. 22-3717(u). K.S.A. 2018 Supp. 22-3717(u) places the responsibility of ordering lifetime electronic monitoring on the Board. However, K.S.A. 2018 Supp. 21-6604(r) places the responsibility of ordering lifetime electronic monitoring on the sentencing court, while leaving the decision about how much the prisoner is to reimburse the State for electronic monitoring to the Board. While this conflict is disturbing, it is unnecessary to resolve the conflict in this appeal because both provisions indicate lifetime electronic monitoring is imposed in conjunction with parole granted for an indeterminate life sentence.

Parole applies to an indeterminate sentence and postrelease supervision applies to a determinate sentence. Ballard , 289 Kan. at 1014. When a criminal defendant is given an indeterminate life sentence, only the Board determines whether parole should be granted and the conditions by which parole is to be served. See Waggoner , 297 Kan. at 99. Conversely, when a criminal defendant is given a determinate sentence under the KSGA, the defendant's release is determined by the length of the controlling sentence imposed by the district court minus good time credit. See State v. Gaudina , 284 Kan. 354, 358, 160 P.3d 854 (2007) (noting that complete sentence under the KSGA includes "the prison sentence, the maximum potential reduction to such sentence as a result of good time and the period of postrelease supervision"). When the district court departed to the KSGA, the court gave Dunn a determinate sentence under the KSGA.

But both K.S.A. 2018 Supp. 21-6604(r) and K.S.A. 2018 Supp. 22-3717(u) refer to a sentence imposed under K.S.A. 2018 Supp. 21-6627. Subsection (a)(1) of that statute directs:

"Except as provided in subsection (b) or (d), a defendant who is 18 years of age or older and is convicted of the following crimes committed on or after July 1, 2006, shall be sentenced to a term of imprisonment for life with a mandatory minimum term of imprisonment of not less than 25 years unless the court determines that the defendant should be sentenced as determined in subsection (a)(2)."

The listed crimes include rape. See K.S.A. 2018 Supp. 21-6627(a)(1)(B). K.S.A. 2018 Supp. 21-6627 provides a few statutory exceptions for sentencing a criminal defendant to an indeterminate sentence of imprisonment for life without parole for 25 years. Most of the exceptions do not apply to Dunn and involve imposing a harsher indeterminate life sentence. See K.S.A. 2018 Supp. 21-6627(a)(2), (b)(1), and (b)(2). However, subsection (d) provides an exception authorizing the district court to depart from the presumptive indeterminate life sentence to the sentencing grid. While K.S.A. 2018 Supp. 21-6627(d) authorizes a departure from K.S.A. 2018 Supp. 21-6627(a), if the court finds substantial and compelling reasons to depart, the sentence imposed is no longer under the authority of K.S.A. 2018 Supp. 21-6627. Instead, if the court departs, the defendant is sentenced pursuant to the provisions of K.S.A. 2018 Supp. 21-6818 and "no sentence of a mandatory minimum term of imprisonment shall be imposed hereunder." K.S.A. 2018 Supp. 21-6627(d)(1). Turning to K.S.A. 2018 Supp. 21-6818, that statute provides:

"(a) When a departure sentence is appropriate, the sentencing judge may depart from the sentencing guidelines as provided in this section. The sentencing judge shall not impose a downward dispositional departure sentence for any crime of extreme sexual violence, as defined in K.S.A. 2018 Supp. 21-6815, and amendments thereto. The sentencing judge shall not impose a downward durational departure sentence for any crime of extreme sexual violence, as defined in K.S.A. 2018 Supp. 21-6815, and amendments thereto, to less than 50% of the center of the range of the sentence for such crime.
"(b) When a sentencing judge departs in setting the duration of a presumptive term of imprisonment:
(1) The judge shall consider and apply the sentencing guidelines, to impose a sentence that is proportionate to the severity of the crime of conviction and the offender's criminal history; and
(2) the presumptive term of imprisonment set in such departure shall not total more than double the maximum duration of the presumptive imprisonment term."

Considering these provisions together, a sentence imposed under K.S.A. 2018 Supp. 21-6627 is an indeterminate life sentence with various parole eligibility, not a guidelines sentence imposed under K.S.A. 2018 Supp. 21-6818 under the authority of K.S.A. 2018 Supp. 21-6627(d). When the Kansas Legislature mandated the imposition of lifetime electronic monitoring under either K.S.A. 2018 Supp. 21-6604(r) or K.S.A. 2018 Supp. 22-3717(u) for sentences imposed under K.S.A. 2018 Supp. 21-6627, the Legislature reserved lifetime electronic monitoring to parolees, not persons subject to postrelease supervision after serving a determinate sentence. Consequently, the district court erred in imposing lifetime electronic monitoring on Dunn. Dunn's lifetime postrelease electronic monitoring sentence must be vacated. See Waggoner , 297 Kan. at 100 (simply vacating the part of sentencing that ordered lifetime electronic monitoring).

Lifetime postrelease supervision applies to Dunn

Finally, Dunn contends the district court erred in failing to realize it possessed discretion to impose a length of postrelease supervision for less than Dunn's natural life.

As a preliminary matter, Dunn seems to suggest the district court lost jurisdiction to modify the term of postrelease supervision once it had announced the 60-month term from the bench. A district court loses jurisdiction to modify a sentence after the sentence is pronounced from the bench. See State v. Tafoya , 304 Kan. 663, 666-67, 372 P.3d 1247 (2016). An exception applies to illegal sentences corrected before sentencing is complete. Tafoya , 304 Kan. at 667. After announcing Dunn's sentence and postrelease supervision period at the first sentencing hearing, the State challenged the postrelease supervision period imposed by the court before the hearing had concluded. The district court then continued the hearing and by doing so specifically retained jurisdiction over sentencing to permit the parties to brief the sentencing issues. The district court did not lose jurisdiction to change Dunn's period of postrelease supervision.

Even if Dunn is correct the district court lost jurisdiction to modify the sentence announced from the bench at the first sentencing hearing, this court must remand the case for resentencing. Nothing would prevent the State from making the same argument regarding the imposition of lifetime postrelease supervision on remand. See Tafoya , 304 Kan. at 667.

"[A] district court has no authority to modify unchallenged sentences following a remand by an appellate court except when modification is needed to correct arithmetic or clerical errors. [Citation omitted.] The only other exception occurs when a sentence is determined to be illegal within the meaning of K.S.A. 22-3504, which may happen at any time. [Citation omitted.]" Tafoya , 304 Kan. at 667.

Kansas appellate courts have consistently held the failure to impose the mandatory period of lifetime postrelease supervision constitutes an illegal sentence. State v. Brook , 309 Kan. 780, 786, 440 P.3d 570 (2019) (authorizing modification of sentence to lifetime postrelease supervision at probation revocation because the previously imposed postrelease supervision period of 24 months constituted an illegal sentence); State v. Cameron , 294 Kan. 884, 898-900, 281 P.3d 143 (2012) ; State v. Hermann , 53 Kan. App. 2d 147, 149-54, 384 P.3d 1010 (2016), rev. denied 306 Kan. 1324 (2017).

Dunn contends, however, the imposition of lifetime postrelease supervision was not mandatory in his case because the district court granted a departure sentence. Again, the resolution of the issue is controlled by statutory interpretation subject to unlimited review. Warren , 307 Kan. at 612.

"(d)(1) Persons sentenced for crimes, other than off-grid crimes, committed on or after July 1, 1993, or persons subject to subparagraph (G), will not be eligible for parole, but will be released to a mandatory period of postrelease supervision upon completion of the prison portion of their sentence as follows:
....
(G)(i) Except as provided in subsection (u), persons sentenced to imprisonment for a sexually violent crime committed on or after July 1, 2006, when the offender was 18 years of age or older, and who are released from prison, shall be released to a mandatory period of postrelease supervision for the duration of the person's natural life." K.S.A. 2018 Supp. 22-3717(d)(1)(G)(i).

The plain statutory language of (d)(1) applies only to determinate sentences. Dunn received a determinate sentence through a durational departure. But subsection (d)(1) specifically notes offenses described in K.S.A. 2018 Supp. 22-3717(d)(1)(G)(i) -sexually violent crimes committed by an offender 18 years of age or older-have a specific postrelease period assigned that differs from the varied postrelease supervision periods assigned to crimes based on severity level. By its plain language, K.S.A. 2018 Supp. 22-3717(d)(1)(G)(i) imposes a mandatory lifetime postrelease supervision period to convictions for sexually violent crimes where the offender is 18 years of age or older. The only exception provided is when such an offender is assigned an off-grid, indeterminate sentence. In that case, parole rather than postrelease supervision governs. See Ballard , 289 Kan. at 1014. The broad inclusive language of these statutory provisions encompasses determinate sentences imposed as the result of a sentencing departure from a presumptive indeterminate life sentence.

Dunn argues a conflict exists between K.S.A. 2018 Supp. 21-6818(b)(1) (authorizing the court to consider and apply the KSGA in departing from an off-grid sentence to the KSGA) and K.S.A. 2018 Supp. 21-3717(d)(1)(G)(i) (establishing mandatory lifetime postrelease supervision). The provisions are not in conflict.

K.S.A. 2018 Supp. 21-6818(b)(1) directs the sentencing court to consider the KSGA when departing from the life sentence presumptively applied to an off-grid offense. As Dunn correctly notes, postrelease supervision period is a part of a KSGA sentence. See Gaudina , 284 Kan. at 358. But K.S.A. 2018 Supp. 21-6818 does not direct the authorized dispositions for postrelease supervision periods. Whether the sentence imposed was a presumptive guidelines sentence or a departure sentence under K.S.A. 2018 Supp. 21-6818(b)(1), the district court would need to refer to other statutory provisions to determine the appropriate prison term and postrelease supervision period for the crime of conviction. See, e.g., K.S.A. 2018 Supp. 21-6804(a) (sentencing grid); K.S.A. 2018 Supp. 21-6815 (listing aggravating and mitigating departure factors).

K.S.A. 2018 Supp. 22-3717(d)(1) -including subsection (d)(1)(G)(i)-governs the terms of postrelease supervision. There is no conflict in applying both provisions to establish Dunn's departure sentence. The structure and language of K.S.A. 2018 Supp. 22-3717(d)(1) reveals clear legislative intent to create a mandatory period of lifetime postrelease supervision for crimes like Dunn committed, unless the defendant receives an off-grid indeterminate life sentence. Contrary to Dunn's argument, the district court lacked discretion to impose a lesser period of postrelease supervision under the circumstances of this case. The district court properly imposed a period of lifetime postrelease supervision on Dunn.

Affirmed in part, sentence vacated, and case remanded for resentencing.


text:
    STATE of Kansas, Appellee, v. Dianne ADAMS, Appellant.
    No. 120,720
    Court of Appeals of Kansas.
    Opinion filed July 5, 2019.
    MEMORANDUM OPINION
   Per Curiam:

Dianne Adams pled no contest to burglary in violation of K.S.A. 2014 Supp. 21-5807(a)(2), (c)(1)(B), a severity level 7 nonperson felony, and to criminal damage to property in violation of K.S.A. 2014 Supp. 21-5813(a)(1), (b)(2), a severity level 9 nonperson felony. The district court accepted Adams' pleas and adjudged her guilty, dispositionally departing to a sentence of 24 months' probation with an underlying 38-month prison sentence.

On appeal, Adams contends that the district court abused its discretion when it revoked her probation and imposed a modified prison sentence because "a reasonable person would have acknowledged that Adams had gainful employment waiting for her and would have released her immediately, or at an earlier date than the district court did so that she could meaningfully contribute to society." We granted Adams' motion for summary disposition under Supreme Court Rule 7.041A (2019 Kan. S. Ct. R. 47). The State responded to the motion for summary disposition, and it did not object to the granting of the motion.

Between July 1, 2016, and December 20, 2017, Adams was found to have committed numerous technical probation violations and was ordered to serve the following sanctions: one 2-day dip in jail; a 24-month extension of her probation; residential placement; a 3-day dip in jail; a 180-day prison sanction; and a 120-day prison sanction. On December 31, 2018, Adams stipulated to two probation violations while contesting a third. She noted that she was 64 years old, close to retirement, and had obtained a job that would start upon her release from jail if she received probation. She also noted a significant alcohol problem which was the root of her criminal problems. She requested to be placed back on probation and, in the alternative, to receive a modified underlying sentence of 18 to 24 months in prison. The district court imposed a modified 24-month prison sentence to be followed by 12 months' postrelease supervision.

Adams expressly acknowledges that the decision to revoke probation rests in the sound discretion of the district court. See State v. Gumfory , 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). Judicial discretion is abused 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. Jones , 306 Kan. 948, 957, 398 P.3d 856 (2017).

Moreover, a district court may revoke probation of defendant and impose an underlying sentence when defendant has already been sanctioned to 120 or 180 days in prison under K.S.A. 2018 Supp. 22-3716(c)(1)(C) and/or (D). Because it is undisputed that graduated sanctions had already been exhausted, the district court acted well within its sound discretion in revoking Adams' probation and in imposing her modified underlying sentence. Thus, we conclude the district court did not abuse its discretion and we affirm the district court's decision.

Affirmed.


text:
    STATE of Kansas, Appellee, v. James Angelo DEMARONEY III, Appellant.
    No. 120,516
    Court of Appeals of Kansas.
    Opinion filed July 5, 2019
    MEMORANDUM OPINION
   Per Curiam:

James A. DeMaroney III was convicted of one count each of possession of methamphetamine, possession of marijuana, and possession of Zolpidem, all drug severity level 5 felonies. The district court imposed a controlling underlying sentence of 20 months' imprisonment and granted DeMaroney a dispositional departure to 12 months' probation.

On appeal, DeMaroney contends that the district court erred in revoking his probation and in imposing the underlying prison sentence. We granted DeMaroney's motion for summary disposition under Supreme Court Rule 7.041A (2019 Kan. S. Ct. R. 47). The State did not object to summary disposition.

On February 27, 2018, DeMaroney admitted that he had violated the terms of his probation. On May 25, 2018, the district court revoked DeMaroney's probation and imposed his underlying prison sentence.

Our standard of review of a district court's decision to revoke probation is well settled. Once a probation violation has been established, the decision to revoke probation lies within the sound discretion of the district court. See State v. Skolaut , 286 Kan. 219, 227, 182 P.3d 1231 (2008). Judicial discretion is abused if the action "(1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law ...; or (3) is based on an error of fact." State v. Jones , 306 Kan. 948, Syl. ¶ 7, 398 P.3d 856 (2017). DeMaroney bears the burden to show an abuse of discretion by the district court. See State v. Rojas-Marceleno , 295 Kan. 525, 531, 285 P.3d 361 (2012).

Nevertheless, the district court's discretion to revoke probation is limited by the intermediate sanctions requirement outlined in K.S.A. 2018 Supp. 22-3716. Generally speaking, a district court is required to impose intermediate sanctions before revoking an offender's probation. See State v. Huckey , 51 Kan. App. 2d 451, 454, 348 P.3d 997, rev. denied 302 Kan. 1015 (2015). Yet, there are exceptions that permit a district court to revoke probation without having previously imposed the statutorily required intermediate sanctions; one of those exceptions allows the district court to revoke probation if "the welfare of the offender will not be served by such sanction." K.S.A. 2018 Supp. 22-3716(c)(9)(A). The district court revoked DeMaroney's probation on this basis and imposed his underlying prison sentence, and we affirm that decision.

Affirmed.