State v. Schad
| Decision Date | 24 April 2009 |
| Docket Number | No. 99,445.,99,445. |
| Citation | 206 P.3d 22 |
| Parties | STATE of Kansas, Appellee, v. Leroy SCHAD, Appellant. |
| Court | Kansas Court of Appeals |
Carl Folsom, III, of Kansas Appellate Defender Office, for appellant.
Joe Shepack, county attorney, and Stephen N. Six, attorney general, for appellee.
Before GREENE, P.J., GREEN and LEBEN, JJ.
After pleading no contest to one count of aggravated indecent solicitation of a child in violation of K.S.A. 21-3511, Leroy Schad was placed on 60 months' probation. The trial court imposed several probation conditions that included placing him under house arrest, forbidding him from grocery shopping, and ordering him to place sexual offender signs around his house and on his car. On appeal, Schad raises arguments relating to his probation conditions, the term of his probation, and the term of his underlying prison sentence. The State contends, however, that this court lacks jurisdiction to decide Schad's arguments under K.S.A. 21-4704b(f). We disagree with the State's contention and find that we have jurisdiction to address Schad's arguments.
First, Schad argues that the probation conditions requiring him to post signs around his house and on his car were invalid because they violated his right to privacy and his right against cruel and unusual punishment and because the trial court did not have the authority to impose the conditions. Nevertheless, when a valid alternative ground for relief exists, an appellate court need not reach the constitutional contentions of the parties. Because we reverse and remand to the trial court to sever these conditions from the order of probation on the basis that they violate our statutory scheme, it is unnecessary for us to address the constitutional law contentions.
Next, Schad contends that the trial court lacked the statutory authority to order Schad to serve 60 months of probation. We disagree. Next, Schad maintains that the trial court failed to make the necessary findings to increase his term of probation to 60 months. We agree. As a result, we remand to the trial court to determine whether there were substantial and compelling reasons to impose the 60-month term of probation. If there were not substantial and compelling reasons for the 60-month term of probation, the trial court is limited to imposing the recommended 36-month term of probation under K.S.A. 21-4611(c)(1). Next, Schad argues that the trial court erred in prohibiting him from grocery shopping as a condition of his probation. We determine that under K.S.A. 21-4603b(d), the trial court could not impose a probation condition that constituted a deprivation of an essential activity. The trial court in this case never made the necessary inquiry and appropriate findings as to whether Schad was able to obtain food by other means. As a result, we remand the case with instructions that the probation condition prohibiting Schad from grocery shopping should be severed from the order of probation unless it can be shown on rehearing that grocery shopping was not an essential activity.
Finally, Schad contends that the trial court violated his constitutional rights in sentencing him to the aggravated number in the sentencing grid box. Nevertheless, because our Supreme Court recently rejected this same argument in State v. Johnson, 286 Kan. 824, 190 P.3d 207 (2008), Schad's argument fails. Accordingly, we affirm Schad's underlying prison sentence and remand the case with instructions to sever the probation conditions requiring Schad to post signs around his house and on his car and with additional instructions concerning Schad's 60-month term of probation and the probation condition pertaining to grocery shopping.
Schad was originally charged with one count of rape and three counts of aggravated indecent liberties with a child. The charges were based upon allegations that Schad had bathed separately with each of his grandchildren, a 9-year-old female and an 11-year-old male, while they were staying overnight at his house and had touched their genitals during and following the baths. Schad admitted to officers that the touching had occurred after the baths but stated that the touching had occurred over his grandchildren's clothing and that the touching of his granddaughter had been accidental.
In exchange for Schad's no contest plea, the State amended the complaint to charge only one count of aggravated indecent solicitation of a child. At the plea hearing, the State proffered the preliminary hearing transcript and stated that the transcript would show that on the date in question, Schad invited or persuaded a child under the age of 14 to come up to "one of the bedrooms or bathrooms in house and then and there take a bath" with him.
Based on his criminal history, Schad fell within 5-I, which was a border box, on the Kansas Sentencing Guidelines Acts grid, K.S.A. 21-4704b. As a result, Schad's conviction of aggravated indecent solicitation of a child carried a presumptive sentence of 31 to 34 months' imprisonment. Before sentencing, Schad moved the trial court to make appropriate border box findings to allow him to receive probation. The trial court sentenced Schad to an underlying sentence of 34 months in prison but granted Schad's motion for probation. The trial court found that there was little chance of recidivism and that there was appropriate treatment available. The trial court ordered Schad to serve 60 months of probation. As part of the conditions of his probation, the trial court placed Schad under house arrest for the entire duration of his probation. The trial court allowed Schad to leave his home to meet with his probation officer, to participate in a sexual offender treatment program, and to drive to medical appointments.
Nevertheless, determining that Schad would not be allowed to leave his home for any other reason, the trial judge stated:
The trial court also ordered Schad to place signs, with letters at least 4 inches tall, stating that a "sexual predator lives here" on all four sides of his property. Moreover, the trial court ordered Schad to put stickers similar to what "campaign people" use on both sides of his car that state "sexual predator." The trial court further ordered Schad not to have contact with any children under the age of 16, including his grandchildren.
After Schad filed his notice of appeal in this case, the State moved to revoke Schad's probation for failure to comply with the conditions of his probation. The State maintained that Schad had failed to contact the appropriate program to set up his house arrest and that he had not affixed the ordered signs on his property and on his car. Schad moved to advance the case for an immediate hearing on the State's allegation of a probation violation. Schad also moved the trial court to reconsider its probation order relating to the wording on the ordered signs. In addition, Schad asked the trial court to allow him a reasonable time to find out whether his family would be able to assist him with the costs of the house arrest program. Schad requested that if no financial help could be arranged, that the trial court reconsider whether ordering him to pay the cost of the house arrest program constituted cruel and unusual punishment. Attached to Schad's motion for reconsideration was an affidavit from Schad outlining his concerns about the probation conditions.
After holding a nonevidentiary hearing, the trial court granted the State's motion to revoke Schad's probation. The trial court modified the language in its earlier order and required Schad to place signs on his property stating that a "Sex Offender Lives Here" (instead of "sexual predator lives here") and on his car stating that "Sex Offender In This Car" (instead of "sexual predator"). In addition, the trial court reinstated Schad's probation with a few new conditions. The trial court imposed a new 5-year term of probation. Moreover, the trial court specified the dates by which Schad was required to comply with the probation conditions.
On appeal, Schad raises arguments relating to the constitutionality of his probation conditions, the trial court's authority to impose the probation conditions, the trial court's authority to increase the term of his probation, and the constitutionality of his underlying prison sentence. In its appellate brief, the State does not address the merits of Schad's arguments. Instead, the only argument advanced by the State is that there is no statutory authority for this court to hear a direct appeal of Schad's sentence. Therefore, the State contends that this court must dismiss Schad's appeal for lack of jurisdiction.
Whether jurisdiction exists is a question of law over which an appellate court's scope of review is unlimited. State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275 (2007). It is well established that the right to appeal is entirely statutory and is not contained in the United States or Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statute. State v. Legero, 278 Kan. 109, 111, 91 P.3d 1216 (2004).
Moreover, the State's argument requires interpretation of K.S.A. 21-4704b(f). The interpretation of a statute presents a question of law over which an appellate court has unlimited review. State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008).
K.S.A. 21-4704b(f) specifies that the imposition of an optional nonprison sentence of an offense classified in grid blocks 5-H, 5-I, or 6-G is not considered a departure and is not subject to appeal:
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