State v. Brown
| Decision Date | 16 January 2015 |
| Docket Number | 110,488. |
| Citation | 342 P.3d 1 (Table) |
| Parties | STATE of Kansas, Appellee, v. Dalvin BROWN, Appellant. |
| Court | Kansas Court of Appeals |
Samuel Schirer, of Kansas Appellate Defender Office, for appellant.
Lesley A. Iserwood, assistant district attorney, Mark Bennett, district attorney, Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., McANANY, J., and BURGESS, S.J.
Eighteen-year-old Delvin Brown pled guilty to three felony sex offenses that resulted from his relationship with his 15–year–old girlfriend. Brown initially avoided having to serve the controlling presumptive 50–month prison sentence imposed by the court because the district court reluctantly granted him a downward dispositional departure to 36 months' probation. Within 6 months, however, Brown admitted to violating the terms and conditions of his probation for a second time, and the district court ordered him to serve his underlying sentence. This is Brown's appeal from that disposition order. We affirm the district court's order.
Only a brief chronology of events leading up to this appeal is necessary to provide context for the issues now before this court.
Based on acts committed in March 2012, the State charged 18–year–old Dalvin Brown with two counts of unlawful voluntary sexual relations and one count of sexual exploitation of a child. The victim of those crimes, A.J.S, was Brown's 15–year–old girlfriend. The exploitation charge resulted from a sexually explicit picture A.J.S took of herself and sent to Brown at his request, a practice commonly referred to as “sexting.” See Miller v. Mitchell, 598 F.3d 139, 143 (3d Cir.2010) ().
On November 16, 2012, Brown pled guilty as charged pursuant to a plea agreement with the State. Shortly thereafter, the district court revoked Brown's appearance bond because he violated its conditions.
On January 9, 2013, the district court imposed a controlling presumptive 50–month prison sentence. The district court further pronounced that Brown would be subject to lifetime postrelease supervision in light of his conviction of sexual exploitation of a child. See K.S.A.2011 Supp. 22–3717(d)(1)(G)(2), (H) (governing lifetime postrelease supervision). Over the State's objection, the district court then granted Brown's motion for a downward dispositional departure and placed him on probation for 36 months. The district court advised Brown it was “reluctantly” giving him this chance and stressed that he would have to serve his prison sentence if he violated the terms of his probation.
Brown admittedly violated several terms of his probation within the first month. Again over the State's objection, a different district judge gave him a second chance at probation with the additional requirement that Brown enter into and successfully complete the community corrections residential program.
Brown, however, did not take full advantage of this additional chance at probation. Consequently, a warrant was issued on June 14, 2013, based on Brown's intensive supervisor officer's (ISO) allegations that he committed several more probation violations between April 29 and June 11, 2013.
On July 11, 2013, the same district judge who presided over Brown's first probation violation hearing conducted a hearing on his ISO's new allegations. Brown once again admitted to all of the violations. Brown's counsel pleaded with the district court to follow Brown's ISO's recommendations to impose a 60–day sanction and allow Brown to reenter the residential program, where he was making progress. At the very least, Brown's counsel asked the district court to impose a lesser 30–month prison sentence. The district court refused both requests, revoked Brown's probation, and announced that it was “impos[ing] the sentence.” In support, the judge explained that neither he nor the sentencing judge wanted to send Brown to prison at such a young age “for that long period of time,” which is why they had given Brown “three shots.” Yet, the judge found that even with “a 50–month sentence hanging over his head,” Brown repeatedly demonstrated—from the beginning—that he was not amenable to probation. This is Brown's appeal from that probation revocation proceeding.
We begin by addressing Brown's second issue on appeal. This issue raises the question as to whether our legislature's amendments to K.S.A.2013 Supp. 22–3716 apply retroactively to crimes committed on or before its July 1, 2013, effective date. See L.2013, ch. 76, sec. 5. Pertinent to this appeal, those amendments included the enactment of a series of graduated sanctions that a district court may impose upon finding that an offender has violated a condition of release or assignment, where the original crime of conviction was a felony. Compare K.S.A.2012 Supp. 22–3716(b) with K.S.A.2013 Supp. 22–3716(c). The revised statute does grant the district court the authority to require a defendant to serve the underlying prison sentence without first applying the graduated sanctions under certain circumstances. See K.S.A.2013 Supp. 22–3716(c)(8) (); K.S.A.2013 Supp. 22–3716(c)(9) ().
Both parties engage in extensive argument to demonstrate their respective positions as to why or why not the legislature intended K .S.A.2013 Supp. 22–3716(c) to apply in this case.
The precise theory underlying Brown's contention that this court must reverse his probation revocation and remand for the district court to comply with K.S.A.2013 Supp. 22–3716(c) is not entirely clear. At one point, Brown seems to suggest this court should hold the date of probation violation hearing controls, i.e., he contends the district court had to apply K.S.A.2013 Supp. 22–3716(c) because it became effective before his July 11, 2013, probation revocation hearing. On the other hand, Brown suggests that the date of his underlying crimes controls, but K.S.A.2013 Supp. 22–3716(c) applies retroactively because it is strictly procedural.
The State responds that the graduated sanctions apply only prospectively to underlying crimes committed on or after the July 1, 2013, effective date of K.S.A.2013 Supp. 22–3716(c). In support, the State contends K.S.A.2013 Supp. 22–3716(c) is a substantive criminal statute and suggests retroactive application of its graduated sanctions could run afoul of the Ex Post Facto Clause of the United States Constitution.
Should this court consider this issue for the first time on appeal?
Brown admittedly did not raise this issue below. As a result, this court must first determine whether it should address the merits. Generally, this court cannot consider issues not raised below. See State v. Cheffen, 297 Kan. 689, 698, 303 P.3d 1261(201). There are, however, some exceptions to this preservation rule. See State v. Anderson, 294 Kan. 450, 464–65, 276 P.3d 200, cert. denied 133 S.Ct. 529 (2012) ().
The burden is on the appellant to explain why an issue is properly before an appellate court when it was not raised below. Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40). The failure to do so can result in the dismissal of the appeal. In fact, a recent decision by our Supreme Court indicates our courts must now strictly apply this rule. See State v. Williams, 298 Kan. 1075, 1085–86, 319 P.3d 528 (2014) (); State v. Kilma, No. 110,660, 2014 WL 3843473, at *2–3 (Kan.App.2014) (unpublished opinion) (), petition for rev. filed August 29, 2014 (pending).
Brown's contention is that this court can consider this issue for the first time under K.S.A. 22–3504(1), which provides, “[t]he court may correct an illegal sentence at any time.” Our Supreme Court has made it clear that “the court” includes an appellate court, which can correct an illegal sentence sua sponte. See State v. Kelly, 298 Kan. 965, 975–76, 318 P.3d 987 (2014). The State did not respond to this argument.
Brown's challenge to the disposition imposed upon his violation of probation does not constitute a challenge to an illegal sentence. Our Supreme Court has defined an “illegal sentence” as:
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