State v. Allen, 011521 KSCA, 121, 779

Docket Nº:121, 779
Opinion Judge:PER CURIAM.
Party Name:State of Kansas, Appellee, v. Kirk E. Allen, Appellant.
Attorney:Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Judge Panel:Before Arnold-Burger, C.J., Hill and Atcheson, JJ. Arnold-Burger, C.J., concurring:
Case Date:January 15, 2021
Court:Court of Appeals of Kansas

State of Kansas, Appellee,


Kirk E. Allen, Appellant.

No. 121, 779

Court of Appeals of Kansas

January 15, 2021


Appeal from Sedgwick District Court; Seth L. Rundle, judge.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Arnold-Burger, C.J., Hill and Atcheson, JJ.



Defendant Kirk E. Allen admitted to violating the terms of his probation and later thought better of his decision when the Sedgwick County District Court ordered him to serve his 52-month prison sentence. Allen filed a motion to withdraw his admissions. The district court declined to consider the motion, and Allen has appealed. Allen contends he has a constitutional due process right to withdraw his admissions or, alternatively, this court should create a common-law right for him to do so. Absent a statute allowing a probationer to withdraw admissions to violations-and there is no such statute in Kansas-defendants in Allen's position cannot lay claim to such relief in their criminal cases. We, therefore, find no legal basis for disturbing the district court's order revoking Allen's probation and sending him to prison.

Factual and Procedural History

Under an agreement with the State, Allen pleaded no contest in 2015 to an amended charge of commercial sexual exploitation of a child, a felony violation of K.S.A. 2013 Supp. 21-6422. The factual circumstances of the crime are irrelevant to the issue before us. Consistent with the agreement, the district court later sentenced Allen to 52 months in prison. In the plea agreement, Allen reserved the right to request probation; the district court granted his request, placing him on probation for 36 months.

The State filed a warrant in August 2017 alleging Allen violated the conditions of his probation by possessing a handgun and by "associating with" persons attempting to purchase cocaine. Allen was taken into custody on the warrant and appeared with his lawyer at a probation revocation hearing on November 9, 2017.

At that hearing, Allen's retained lawyer informed the district court that Allen did not intend to contest the violations. The district court advised Allen that he had a right to an evidentiary hearing at which the State would have to prove the violations by a preponderance of the evidence and that his lawyer could cross-examine the State's witnesses and present witnesses and other evidence on Allen's behalf. Allen acknowledged he was waiving those rights by not contesting the allegations in the warrant. The district court then recited each violation in the warrant and asked Allen personally if he admitted the violation for purposes of the probation revocation proceeding. Allen stated that he did. The district court found that Allen "knowingly and voluntarily waived his right to a hearing" and accepted his admission that the probation violations in the warrant were true. The district court continued the hearing, allowing the State and Allen to later address an appropriate sanction for the probation violations.

Allen again appeared with his lawyer on December 1, 2017, when the district court took up what to do with Allen. The State recommended that Allen serve the underlying prison sentence. Allen and his lawyer made a lengthy presentation for an intermediate jail sanction with reinstatement of probation. Allen personally pointed to his gainful employment and his financial and direct parental support for his children in asking for another opportunity on probation. Based on Allen's underlying crime of conviction and the nature of the admitted violations, the district court revoked Allen's probation and ordered that he serve the 52-month prison sentence.

Two weeks later, a newly retained lawyer filed a motion on Allen's behalf to withdraw his admissions to the probation violations alleged in the warrant. The case was continued several times as Allen changed lawyers, and the district court finally appointed a public defender to represent him. In August 2019, the district court heard argument on Allen's motion to withdraw his admissions to the probation violations. The district court concluded it had "no jurisdiction" to consider the motion because Allen had no legal right to relief. The district court denied the motion on that basis and expressly declined to rule on Allen's argument that his admissions were not knowingly and voluntarily made. Allen has appealed.

Legal Analysis

The single issue on appeal is the propriety of the district court's failure to grant Allen relief on the motion to withdraw his admissions to the probation violations. Allen has not otherwise challenged the revocation of his probation and the order requiring him to serve the underlying prison sentence. There are no disputed facts bearing on this point, so we address a question of law. And we owe no particular deference to the district court's answer to that question. See State v. Bennett, 51 Kan.App.2d 356, 361, 347 P.3d 229 (2015); Estate of Belden v. Brown County, 46 Kan.App.2d 247, 258-59, 261 P.3d 943 (2011). We begin there, recognizing we may affirm the district court if it reaches what is functionally the right result for the wrong reason. State v. Smith, 309 Kan. 977, 986, 441 P.3d 1041 (2019).

Jurisdiction to Hear Allen's Motion

The district court incorrectly reasoned that it lacked jurisdiction to consider Allen's motion because it saw no plausible legal basis for granting relief. As we explain, Allen had no right to withdraw his admissions to the probation violations in this case. But the district court had jurisdiction-the broad legal authority-to consider the motion and to deny it as lacking any legal basis. District courts have general jurisdiction encompassing criminal prosecutions and the constituent components of those prosecutions, including granting and revoking probation. The district court had jurisdiction over this case and, therefore, had the authority to decide Allen's motion. The district court's authority did not vanish because Allen requested relief he could not receive in a probation revocation. The district court improperly premised its ruling on a lack of jurisdiction, blurring the very real difference between a meritless request for relief and one outside the court's authority to consider at all.

In a criminal case, the district court typically loses jurisdiction when a party (commonly the defendant) dockets an appeal. Jurisdiction effectively shifts to the appellate court hearing the appeal. Allen did not docket his appeal until after the district court denied his motion to withdraw his admissions. The parties have not suggested some other jurisdictional bar would have precluded the district court from deciding the motion on the merits. Although we have not shined a bright light in every nook and cranny, we see no readily apparent jurisdictional bar. See State v. Marinelli, 307 Kan. 768, Syl. ¶ 1, 415 P.3d 405 (2018) (appellate court has obligation to question jurisdiction even when parties have not).

Our concurring colleague, however, offers an entirely different take on jurisdiction-one not advanced by the district court or the State-and would dismiss Allen's appeal for that reason. Although all of us agree Allen gets no relief, Chief Judge Arnold-Burger reads too much into State v. Miller, 260 Kan. 892, 902-04, 926 P.2d 652 (1996), abrogated on other grounds by State v. Berreth, 294 Kan. 98, 273 P.3d 752 (2012), in finding a jurisdictional bar to Allen's claims. In Miller, the court held that after a district court has revoked a defendant's probation and ordered him or her to serve a prison sentence, it lacks the authority (or jurisdiction) to go back and reinstate the probation, presumably as a reconsidered act of leniency. But the court held no more than that. 260 Kan. at 903 ("The district court lacked jurisdiction to reinstate Miller's probation . . . after committing her to the custody of the Secretary of Corrections."). In a companion case consolidated in that appeal, the court similarly held that once a district court imposes a lawful guidelines sentence, it lacks the authority to later modify the sentence. 260 Kan. at 903.

But Allen has not sought a district court order reinstating his probation. He has asked to withdraw his admissions to the violations-relief that would restore the revocation process to its initial stage. The State then would be required to prove the violations. Assuming the State did, the district court could again send Allen to prison, although in theory it presumably could reinstate probation. If the State failed to prove the violationsd, the warrant should be dismissed, leaving Allen's original probation intact. All of that is materially different from a defendant's motion asking a district court to reconsider its decision to revoke. Because of those procedural and substantive variations, we do not see Miller as controlling authority mandating dismissal for lack of jurisdiction. The additional cases Chief Judge Arnold-Burger cites simply restate one or the other of Miller's holdings that a district court lacks jurisdiction to modify a sentence after it has been pronounced or to reconsider a decision to revoke probation. So they do not advance some broader argument for lack of jurisdiction here.

Allen Shifts from Statutory to Constitutional Basis for Motion to Withdraw

In the district court, Allen relied, in large part, on the statute permitting a defendant to withdraw guilty or no contest pleas to support his motion. See K.S.A. 2019 Supp. 22-3210(d). But K.S.A. 2019 Supp. 22-3210(d) is confined to the...

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