State v. Hambright

• Decision Date: 13 January 2017
• Docket Number: No. 115,259,115,259
• Citation: 388 P.3d 613
• Parties: State of Kansas, Appellee, v. Dewayne V. Hambright, Appellant.
• Court: Kansas Court of Appeals

388 P.3d 613

State of Kansas, Appellee,

v.Dewayne V. Hambright, Appellant.

No. 115,259

Court of Appeals of Kansas.

Opinion filed January 13, 2017

Clayton J. Perkins, of Kansas Appellate Defender Office, for appellant.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Standridge, P.J., Arnold–Burger and Bruns, JJ.

Arnold–Burger, J.:

Dewayne V. Hambright pled guilty to criminal damage to property, which had a recommended probation period of 24 months. The district court, on its own motion, sentenced Hambright to 36 months of probation. The court also ordered Hambright to pay $60,000 restitution at a rate of $500 per month. Because we find that the district court did not abuse its discretion in setting a probation term of 36 months, we affirm Hambright's legal sentence. Additionally, Hambright argues that his restitution plan is unworkable. Because the plan required over half his income be devoted to restitution payments, we find the plan to be unworkable and thus an abuse of discretion. The case is remanded for the district court to consider a workable plan for Hambright to pay the agreed upon restitution.

FACTUAL AND PROCEDURAL HISTORY

Pursuant to a plea agreement, Hambright pled guilty to criminal damage to property, a severity level 7 felony, and theft, a class A misdemeanor. Hambright recognized that the State would recommend that he pay $60,000 in restitution.

The district judge imposed the presumptive sentence of 17 months in prison based upon Hambright's criminal history score of F for the felony criminal damage count and 12 months in jail on the misdemeanor theft count, for a total of 29 months. However, the judge deviated from the statutorily prescribed 24–month probation period and instead imposed a 36–month probation period. The judge's reason for this deviation was that "the welfare of the defendant will 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 journal entry of sentencing cites K.S.A. 2012 Supp. 21–6608(c)(5) as the basis for the extension.

The district court ordered Hambright to pay $60,000 in restitution, pursuant to the plea agreement, at a rate of $500 per month beginning 90 days after his release from custody in another case. At sentencing, Hambright testified that he was working about 45 hours per week as a restaurant server and earning approximately $200 a week. Hambright paid $250 per month for rent.

Hambright appealed the sentence and restitution plan.

ANALYSIS

The district court did not impose an illegal sentence.

Hambright argues that, because the district court sentencing journal entry cited K.S.A. 2015 Supp. 21–6608(c)(5) as the reason for the departure and K.S.A. 2015 Supp. 21–6608(c)(5) is not applicable to his crime, his sentence is illegal. Alternatively, Hambright argues that the district court did not have substantial and compelling reasons to depart from the recommended 24–month probation and that the district court erred by failing to provide notice of its intent to make a sua sponte departure as required by K.S.A. 2015 Supp. 21–6817(a)(3). The State acknowledges that K.S.A. 2015 Supp. 21–6608(c)(5) does not apply to Hambright's crime of conviction. But, the State argues that the district court was justified in departing from the presumptive 24–month probation period because it had substantial and compelling reasons to do so.

An "illegal sentence," as contemplated by K.S.A. 22–3504(1), is a sentence imposed by a court without jurisdiction; a sentence that does not conform to the statutory provision, either in the character or the term of authorized punishment; or a sentence that is ambiguous with respect to the time and manner in which it is to be served. State v. Gray , 303 Kan. 1011, 1014, 368 P.3d 1113 (2016). A court may correct an illegal sentence at any time. K.S.A. 22–3504(1). Whether a sentence is illegal within the meaning of K.S.A. 22–3504 is a question of law over which the appellate court has unlimited review.

State v. Lee , 304 Kan. 416, 417, 372 P.3d 415 (2016).

K.S.A. 2015 Supp. 21–6608 states:

"(c) For all crimes committed on or after July 1, 1993, the duration of probation in felony cases sentenced for the following severity levels on the sentencing guidelines grid for nondrug crimes and the sentencing guidelines grid for drug crimes is as follows:

(1) For nondrug crimes the recommended duration of probation is:

(A) 36 months for crimes in crime severity levels 1 through 5; and

(B) 24 months for crimes in crime severity levels 6 and 7;

....

(5) if the court finds and sets forth with particularity the reasons for finding that the safety of the members of the public will be jeopardized or that the welfare of the inmate will not be served by the length of the probation terms provided in subsections (c)(3) and (c)(4), the court may impose a longer period of probation. Such an increase shall not be considered a departure and shall not be subject to appeal." (Emphasis added.)

Hambright committed a severity level 7 nondrug felony. Hambright is correct that K.S.A. 2015 Supp. 21–6608(c)(5) cannot serve as a basis for departing from the recommended 24–month probationary period established in K.S.A. 2015 Supp. 21–6608(c)(1)(B). K.S.A. 2015 Supp. 21–6608(c)(5) can only serve as a basis for departing from the probationary periods mandated for severity level 8, 9, and 10 nondrug felony crimes in K.S.A. 2015 Supp. 21–6608(c)(3) and (c)(4). However, this does not necessarily make Hambright's sentence illegal.

A sentence is effective when pronounced from the bench. State v. Tafoya , 304 Kan. 663, 666, 372 P.3d 1247 (2016). A journal entry that imposes a sentence at variance with the sentence pronounced from the bench is erroneous and must be corrected to reflect the actual sentence imposed. State v. Mason , 294 Kan. 675, 677, 279 P.3d 707 (2012). In this case, the sentence pronounced from the bench contained no reference to K.S.A. 2015 Supp. 21–6608(c)(5), although the court did use the language of the statute in its rationale that the 24–month term was not in the best interest of Hambright's welfare or the public welfare. As long as the sentence pronounced from the bench conformed to the statutes and was not ambiguous, it was a legal sentence. See Gray , 303 Kan. at 1014, 368 P.3d 1113. We find that Hambright's sentence did conform to the statute for the reasons that follow.

The decision to increase Hambright's probation term to 36 months, as opposed to the recommended 24 months, was not a departure sentence at all.

Hambright argues that based on our Supreme Court's decision in State v. Whitesell , 270 Kan. 259, 13 P.3d 887 (2000), any increase from the recommended probation period constitutes a departure sentence and must be supported by substantial and compelling reasons. Hambright also argues that the district court erred by failing to provide notice of its intent to depart as required by K.S.A. 2015 Supp. 21–6817(a)(3). The State argues that the sentence was supported by substantial and compelling reasons, but it does not address the notice requirements. In affirming the district court's sentence, we disagree that this was a departure sentence at all. The decision to increase the recommended probation term was a discretionary one, and our review is limited to whether the district judge abused his discretion. Accordingly, K.S.A. 2015 Supp. 21–6817(a)(3) has no application to this case. To explain our position, further examination of Whitesell and its progeny is in order.

Whitesell is reviewed.

Whitesell was convicted of stalking for incidents that occurred in 1997. He was sentenced to 60 months' probation, although the "presumptive sentence [was] 24 months." 270 Kan. at 293, 13 P.3d 887. The "presumptive" probation term was 24 months because stalking was a severity level 10 person felony. K.S.A. 21–3438(a) (Furse 1995). As it applied to Whitesell, at that time, K.S.A. 1999 Supp. 21–4611(c) provided:

"(c) For all crimes committed on or after July 1, 1993, the recommended duration for probation for all felony cases is as follows:

(1) For nondrug crimes:

(A) Thirty-six months for crimes in crime severity levels 1 through 5; and

(B) 24 months for crimes in crime severity levels 6 through 10; and

....

(3) Except as provided in subsections (c)(4) and (c)(5) the total period in all cases shall not exceed 60 months, or the maximum period of the prison sentence that could be imposed whichever is longer."

Subsection (c)(4) provided that for nonsupport and restitution probation could be extended indefinitely for payment. Subsection (c)(5) provided that the court could extend or modify a probation after a hearing upon a finding of necessity, as long as it complied with the limits in subsection (c)(3).

Prior to sentencing the State filed a motion requesting that the court order a 60–month probation period for Whitesell. The district court granted the request. On appeal, without any discussion, the Supreme Court termed this as a departure sentence and found that the court must comply with K.S.A. 1999 Supp. 21–4716(a) and state "substantial and compelling reasons for the departure." 270 Kan. at 294, 13 P.3d 887. Because the court failed to do so, the Supreme Court vacated the sentence. At the time Whitesell was decided, all departure sentences were subject to appeal. 270 Kan. at 292–93, 13 P.3d 887 ; see K.S.A. 21–4721(a) (Furse 1995).

This court has continued to follow Whitesell , finding that an increase in the length of probation is a departure that must be supported by substantial and compelling reasons. See State v. Schad , 41 Kan.App.2d 805, 825–26, 206 P.3d 22 (2009) ; State v. Gordon , 30 Kan.App.2d 852, 857, 50 P.3d 100 (2002), rev'd on other grounds 275 Kan. 393, 66 P.3d 903 (2003) ; State v. McIntyre , No. 111634, 2015 WL 4486795, at *2 (Kan. App. 2015) (unpublished opinion), rev. denied 304 Kan. 1020 ...