State v. Reeves, 117,120

• Decision Date: 01 September 2017
• Docket Number: No. 117,120,117,120
• Citation: 403 P.3d 655
• Parties: STATE of Kansas, Appellee, v. Tieler Michael REEVES, Appellant.
• Court: Kansas Court of Appeals

403 P.3d 655

STATE of Kansas, Appellee,

v.Tieler Michael REEVES, Appellant.

No. 117,120

Court of Appeals of Kansas.

Opinion filed September 1, 2017

Malone, J.:

Tieler Michael Reeves appeals the district court's denial of his request for a lesser prison sentence following the revocation of his probation. We granted Reeves' motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2017 Kan. S. Ct. R. 48). The State has filed no response. Finding that the district court did not abuse its discretion in denying Reeves' request for a lesser sentence, we affirm the district court's decision.

On March 17, 2014, Reeves pled no contest to one count of conspiracy to commit aggravated robbery. On March 24, 2014, the district court imposed the standard presumptive sentence of 32 months' imprisonment but made border box findings and placed Reeves on probation for 36 months to be supervised by community corrections.

From December 2014 to November 2016, Reeves returned to court five times for probation violation hearings. Over the course of that two years, he was ordered to serve 2–day and 30–day jail sanctions, as well as a 120–day sanction with the Department of Corrections. He also received sanctions from his probation officer at least two times.

At a hearing on November 14, 2016, Reeves stipulated to violating his probation on numerous grounds, including failing to report to community corrections as directed and testing positive for drugs. Reeves told the judge that "probation ain't working out for me," and he said he wanted to "just go and do my time." However, he asked the district court to reduce his sentence from 32 months' imprisonment to 23 months. Reeves acknowledged that he had a drug problem. His counsel pointed out that Reeves was 16 years old at the time of the offense, and he was only 20 years old at the time of the hearing. The State objected to any sentence modification and pointed out that Reeves had "completely disappeared from his probation." The district court revoked Reeves' probation, specifically denied his request for a sentence modification, and ordered that he serve the remainder of his original sentence. Reeves timely appealed from that decision.

On appeal, Reeves does not argue that the district court erred in revoking his probation. After all, Reeves explicitly asked the district court to revoke his probation so that he could go and serve his time. However, Reeves claims that the district court "abused its discretion by [ordering him to serve] his full underlying sentence (32 months) after revoking his probation, rather than the 23 months for which he argued."

Resolution of Reeves' claim involves statutory interpretation and raises issues of appellate jurisdiction. Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Collins , 303 Kan. 472, 473–74, 362 P.3d 1098 (2015). Likewise, whether jurisdiction exists is a question of law over which our review is unlimited. State v. Smith , 304 Kan. 916, 919, 377 P.3d 414 (2016).

Pursuant to K.S.A. 2016 Supp. 22-3716(c)(1)(E), upon a finding that a defendant has violated the terms of his or her probation, the district court may impose various alternative sanctions, including ordering the defendant to serve the sentence imposed "or any lesser sentence." Generally, a district court does not have jurisdiction to modify a legal sentence once that sentence is pronounced from the bench. State v. Hall , 298 Kan. 978, 983, 319 P.3d 506 (2014). However, the plain language of K.S.A. 2016 Supp. 22-3716(c)(1)(E) grants jurisdiction to the district court to modify a sentence by allowing the court to impose the underlying sentence, or any lesser sentence, upon revoking a defendant's probation. See State v. McGill , 271 Kan. 150, 154, 22 P.3d 597 (2001).

K.S.A. 2016 Supp. 22-3716(c)(1)(E) is found in the Kansas Code of Criminal Procedure; the statute is not part of the revised Kansas Sentencing Guidelines Act (KSGA). See K.S.A. 2016 Supp. 21-6801 et seq . Our legislature has placed no limitation on the extent that the district court can modify a defendant's sentence upon the revocation of probation, except that the sentence can only be lessened and not increased. The district court's decision to lessen the defendant's sentence upon the revocation of probation is not considered to be a "departure sentence" within the meaning of the revised KSGA. See e.g. , K.S.A. 2016 Supp. 21-6815(a). Unlike with the district court's decision to impose a departure sentence under K.S.A. 2016 Supp. 21-6815(a), the district court is not required to identify any specific mitigating factors or to find "substantial and compelling reasons" to lessen the defendant's sentence upon the revocation of probation.

In Reeves' case, the district court originally imposed a presumptive sentence of 32 months' imprisonment and granted probation. Reeves made no attempt to appeal his sentence. Two years later, the district court revoked Reeves' probation, denied his request for a lesser sentence as authorized by K.S.A. 2016 Supp. 22-3716(c)(1)(E), and ordered him to serve the original sentence of 32 months' imprisonment. Some panels of this court have held that an appellate court lacks jurisdiction to review a defendant's request for a lesser sentence upon the revocation of probation, if the sentence originally imposed was a presumptive sentence under the revised KSGA. See State v. Weekes , No. 115,739, 2017 WL 840280 (Kan.App. 2017) (unpublished opinion); State v. Everett , No. 111,168, 2015 WL 4366445 (Kan.App. 2015) (unpublished opinion). These panels have based that conclusion on K.S.A. 2016 Supp. 21-6820(c)(1), a provision in the revised KSGA which provides that an appellate court shall not review any sentence that is within the presumptive sentence for the crime.

However, we find that we have jurisdiction to review the specific claim that Reeves is making in this appeal. Reeves is not attempting to appeal the propriety of his original presumptive sentence of 32 months' imprisonment that the district court imposed on March 24, 2014. In fact, his time for appealing his original sentence has long since expired. See K.S.A. 2016 Supp. 22-3608(c) ...