State v. Hambright
| Citation | 447 P.3d 972 |
| Decision Date | 23 August 2019 |
| Docket Number | No. 115,259,115,259 |
| Parties | STATE of Kansas, Appellee, v. Dewayne V. HAMBRIGHT, Appellant. |
| Court | United States State Supreme Court of Kansas |
Clayton J. Perkins, of Capital Appellate Defender Office, argued the cause and was on the brief for appellant.
Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
Dewayne V. Hambright petitions this court for review of the Court of Appeals' decision that affirmed the sentencing court's imposition of an extended probation term as being a legal sentence, notwithstanding the lower court's reliance on an inapplicable statutory provision. Hambright argues that his sentence is illegal because the panel refused to apply the mandatory precedent of State v. Whitesell , 270 Kan. 259, 13 P.3d 887 (2000), which required the sentencing court to follow departure sentencing procedures to increase the statutorily recommended term of probation. We agree; Whitesell required the sentencing court to state for the record substantial and compelling reasons to depart from the presumptive duration of probation and its failure to do so resulted in an illegal sentence. Accordingly, we vacate the probation portion of Hambright's sentence and remand to the district court for resentencing.
Pursuant to a plea agreement, Hambright pled guilty to felony criminal damage to property and misdemeanor theft for events that took place on September 2, 2014. The plea agreement provided that the State would recommend the presumptive sentence of probation and restitution of $60,000. The district court followed the recommendations for probation and restitution in this case, but ordered that the probation would commence after Hambright completed his prison sentence in another case for which he was being sentenced at the same time. The total underlying period of incarceration in this case was 29 months.
The district court recognized that the "prescribed statutory period" of probation for Hambright's felony offense in this case was 24 months. But the court imposed a 36-month probation term after finding "that the welfare of the defendant w[ould] not be served by the 24-month statutory length of probation specifically due to the extremely significant amount of restitution in this case of $60,000." The district court also cited Hambright's criminal history and found it was in the public's best interest that he repay as much restitution as possible, which would require a probation term longer than 24 months. The district court established a restitution payment plan of $500 per month.
Hambright appealed to the Court of Appeals, challenging the legality of his sentence and the workability of his restitution plan. On the first issue, he argued that his sentence is illegal under K.S.A. 22-3504 because it does not conform to K.S.A. 2018 Supp. 21-6608, the statute addressing probation duration. Specifically, he pointed out that K.S.A. 2018 Supp. 21-6608(c)(1)(B) sets a 24-month recommended duration of probation for his severity level 7 felony. He asserted that the district court erroneously applied K.S.A. 2018 Supp. 21-6608(c)(5) to extend his probation term to 36 months, because that subsection only applies to severity levels 8 through 10 crimes.
Further, Hambright argued that, pursuant to Whitesell , the extended probation term was a departure sentence. Consequently, K.S.A. 2018 Supp. 21-6815(a), and K.S.A. 2018 Supp. 21-6817(a)(3), required the district court to provide notice to the parties of its intent to depart and then find substantial and compelling reasons to impose a departure sentence.
The Court of Appeals agreed with Hambright that K.S.A. 2018 Supp. 21-6608(c)(5) did not apply to his severity level 7 conviction and, therefore, that statute could not serve as the basis for the district court to increase his probation term. State v. Hambright , 53 Kan. App. 2d 355, 357, 388 P.3d 613 (2017). But the panel sua sponte held that under the plain language of K.S.A. 2018 Supp. 21-6608(c), the sentencing judge has discretion to increase the recommended probation terms set out in K.S.A. 2018 Supp. 21-6608(c)(1) and (c)(2) up to 60 months or the maximum prison sentence that could be imposed. 53 Kan. App. 2d at 361-63, 388 P.3d 613. The panel held that such a modification does not constitute a departure sentence as contemplated by K.S.A. 2018 Supp. 21-6815. 53 Kan. App. 2d at 363, 388 P.3d 613. Consequently, Hambright's sentence of 36 months' probation was not illegal. 53 Kan. App. 2d at 363-64, 388 P.3d 613.
The Court of Appeals recognized that Whitesell applied departure sentencing procedures to an increased probation term. But the panel declared that Whitesell no longer controlled due to changes in the law. Hambright , 53 Kan. App. 2d at 360-63, 388 P.3d 613. Consequently, the panel held that the sentencing judge had discretion to sentence Hambright to any term of probation from 24 months to 60 months without the necessity of making any findings and that such a sentence is not a departure. We granted Hambright's petition to review that holding.
With respect to the issue of the restitution plan's workability, the panel sided with Hambright. It determined that the court-ordered $500 per month payment was too large in relation to Hambright's monthly income and, consequently, that order was an abuse of discretion. The panel remanded to the district court to develop a workable restitution plan. 53 Kan. App. 2d at 367, 388 P.3d 613. The State did not cross-petition for our review of the panel's restitution holding, nor did the State respond in writing to Hambright's petition for review. Consequently, the panel's remand to the district court to develop a workable plan of restitution is unaffected by this decision.
Under K.S.A. 22-3504, "[t]he court may correct an illegal sentence at any time," and, therefore, this court may consider an illegal sentence challenge for the first time on direct appeal. State v. Dickey , 301 Kan. 1018, 1027, 350 P.3d 1054 (2015). We have defined an "illegal sentence" under K.S.A. 22-3504 as:
"(1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in character or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served." State v. Gilbert , 299 Kan. 797, 801, 326 P.3d 1060 (2014).
Hambright argues his sentence is illegal under the second option because it does not conform to K.S.A. 2018 Supp. 21-6608's provisions applicable to the permissible duration of his probation.
Even the State concedes that the district court's reliance on K.S.A. 2018 Supp. 21-6608(c)(5) for authority to extend Hambright's term of probation, as stated in the sentencing journal entry, was erroneous. That subsection simply did not apply to Hambright's sentence for a severity level 7 felony. Ordinarily, when a district court's decision is based upon an error of law, an appellate court will label that action as an abuse of discretion and remand for the district court to apply the correct legal standard. See, e.g., State v. Ardry , 295 Kan. 733, 736-37, 286 P.3d 207 (2012) (); see also Holt v. State , 290 Kan. 491, 503, 232 P.3d 848 (2010) ().
But here, the Court of Appeals found the journal entry to be erroneous as noncompliant with the district court's pronouncement from the bench, which the panel opined did not misapply K.S.A. 2018 Supp. 21-6608(c)(5). The panel reasoned that, although the sentencing judge's soliloquy used the particularized language contained within K.S.A. 2018 Supp. 21-6608(c)(5), it did not specifically recite the statute number. But cf. State v. Garcia , 288 Kan. 761, 766, 207 P.3d 251 (2009) ().
But Hambright's petition for review does not challenge that aspect of the Court of Appeals' decision. Rather, he challenges the panel's overruling of our prior decision in Whitesell to hold that the increased probation term was not a departure. The panel summarized its reinterpretation of the applicable statutes in the opinion's syllabus, to-wit:
Hambright , 53 Kan. App. 2d 355, 388 P.3d 613, Syl.
Hambright asks us to continue our current interpretation of the term of probation statutes, as established in Whitesell .
The resolution of this case involves our interpretation of K.S.A. 2018 Supp. 21-6608 and provisions of the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2018 Supp. 21-6801 et seq. Statutory interpretation is a question of law over which this court has unlimited review. State v. Urban , 291 Kan. 214, 216, 239 P.3d 837 (2010).
Although we are dealing primarily with the meaning of subsections (c)(1) and (c)(6), for context we set forth all of the provisions of K.S.A. 2018 Supp. 21-6608(c), with emphasis added:
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