State v. Ardry

• Decision Date: 05 October 2012
• Docket Number: No. 101,311.,101,311.
• Citation: 295 Kan. 733,286 P.3d 207
• Parties: STATE of Kansas, Appellee, v. Adam ARDRY, Appellant.
• Court: Kansas Supreme Court

295 Kan. 733

286 P.3d 207

STATE of Kansas, Appellee,

v.Adam ARDRY, Appellant.

No. 101,311.

Supreme Court of Kansas.

Oct. 5, 2012.

Syllabus by the Court

K.S.A. 22–3716(b) allows the district court to impose any sentence less than the one originally imposed, including a shorter prison term, a shorter term of postrelease supervision, or any combination thereof. The statute does not require a district court to articulate reasons for the lesser sentence or to provide reasons that are different from those provided for the purpose of an original departure sentence.Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by ROSEN, J.:

Following his guilty plea, Adam Ardry appeals from the sentence imposed following the revocation of his probation. Because we find that the district court relied on a basis that is not grounded in the sentencing framework that our legislature has constructed, we reverse and remand for resentencing applying the proper standards.

On November 9, 2007, Ardry entered a guilty plea to aggravated indecent liberties with a child, a severity level 3, person felony. He simultaneously entered a plea to unrelated charges involving driving while intoxicated.

Consistent with the plea agreement, the State recommended a mid-range sentence in the appropriate sentencing guidelines grid box and a departure to probation on the aggravated indecent liberties charge. Ardry's counsel argued that the sexual contact was consensual, despite the admitted age-related legal inability of the victim to give such consent. Ardry's counsel also asked the court to take into consideration Ardry's claim that he did not know the girl's age and that the victim was portraying herself as older than she was. The district court followed the parties' recommendation and imposed a sentence of 216 months' imprisonment based on Ardry's criminal history score of B. The court also granted a downward departure to 36 months' probation to be served at a community corrections residential center.

Less than a week after completing the residential portion of his probation, Ardry violated his probation by losing his job, failing to report to his probation officer, testing positive for alcohol, and failing to attend his sex offender treatment. Ardry admitted to these violations and requested that the district court reinstate his probation to another residential program, possibly with inpatient alcohol treatment. Ardry's counsel also requested that the court consider imposing a lesser sentence, suggesting the 102 months' imprisonment that Ardry would have received if certain misdemeanors were not aggregated in calculating his criminal history score. Although the court recognized there was no legal obligation to consider the Labette Correctional Conservation Camp, the probation revocation hearing was continued to find out whether Ardry would be accepted into the program.

After Labette informed the court that it would not accept Ardry, the revocation hearing was resumed. The State requested that the court impose Ardry's underlying sentence. The court considered Ardry's previous probation failures—in one previous case, Ardry violated his probation within 2 weeks; in another case, Ardry violated his probation within 3 weeks. The court recognized that cost was the main issue preventing Ardry from attending sex offender treatment. The court stated:

“I don't feel like I have any reasonable choice other than to remand Mr. Ardry to the Department of Corrections to serve his sentence. I would say that in and of itself as far as this PV and the underlying sentence, it would be considered harsh, certainly not illegal, but honestly, I don't have any belief anymore that Mr. Ardry can complete probation, and when I reach that point I have to—I have to be honest with myself. There's just no indication. The history's already there, and I gave Mr. Ardry an opportunity at time of sentencing, and I definitely had concerns, but I didn't voice them ‘cause I don't think that's positive, but the sentence is reimposed. There is postrelease in this case ‘cause the original sentence was a dispositional departure.

“As far as the modification of the sentence, I don't have the case before me, but generally case law and the most recent cases out of Judge Owens' court that addresses this issue, even though the courts—appellate courts didn't specifically address it, they certainly allude to the fact that you have to have substantial and compelling reasons to justify a sentence which goes under the mitigating number, and I couldn't really have any substantial and compelling reason to reduce the sentence, and if I did, it would have to be different from what was given dispositionally because this would be now a durational reduction, and I don't. So I looked every direction I could to avoid this sentence, but once I looked at the history and Labette's declination to take Mr. Ardry, I'm left with reimposing the sentence.”

The Court of Appeals affirmed with Chief Judge Greene concurring in part and dissenting in part, the district court's decision to revoke probation and impose the original sentence.

On review, Ardry argues that the district court abused its discretion at the probation revocation hearing by imposing the original sentence because the court misunderstood the law and so did not properly consider the...