State v. Wilson
| Docket Number | 124,759 |
| Decision Date | 30 June 2023 |
| Parties | State of Kansas, Appellee, v. Becky Anne Wilson, Appellant. |
| Court | Court of Appeals of Kansas |
NOT DESIGNATED FOR PUBLICATION
Appeal from Norton District Court; PRESTON PRATT, judge.
Kasper Schirer, of Kansas Appellate Defender Office, for appellant.
Steven J. Obermeier, assistant solicitor general, and Derek Schmidt attorney general, for appellee.
Before ISHERWOOD, P.J., ATCHESON, J., and TIMOTHY G. LAHEY, S.J.
Becky Anne Wilson pled guilty to three counts of theft and fraud after she systematically pocketed $65,865 from her employer Valley Hope. The district court ordered 24-month terms of probation for each of the three counts, seemingly without regard to the lesser durations established by the legislature for each offense. Wilson was also ordered to pay restitution for the full amount she stole, plus interest, at the rate of a civil judgment. Around 23 months later, the district court revoked Wilson's probation and imposed all three of her underlying prison terms with directions that they be served consecutively.
For the first time on appeal, Wilson advances an illegal sentence claim which bears two components. First, she contends the district court imposed an illegal sentence when it ordered a unitary 24-month term of probation across her three convictions because the statutorily required terms for her second and third offenses are significantly less than 24 months. Thus, she had satisfied the appropriate terms for those two convictions when her probation was revoked foreclosing any imposition of their corresponding prison terms. Wilson further alleges that the attachment of interest payments to her restitution figure likewise failed to conform to the relevant statutes because those provisions do not authorize an order for interest. Following a thorough review of the relevant statutory provision, we find that the district court imposed an illegal sentence when it ordered Wilson to serve 24 months' probation for counts two and three without making the findings required to exceed the duration provided for under the statute. Further, we agree with Wilson's contention that the court impermissibly ordered her to pay interest on her restitution obligation. Thus, we reverse the district court's imposition of Wilson's prison terms for counts two and three, as well as its restitution order.
In February 2019, the State charged Wilson with multiple counts of theft and fraud for acts committed over a three-month period in 2018. Wilson agreed to plead guilty to three of the offenses: theft by deception in violation of K.S.A. 2018 Supp. 21-5801(a)(2), (b)(2) (a level 7 felony), making a false information in violation of K.S.A. 2018 Supp. 21-5824(a) (a level 8 felony), and attempted theft by deception in violation of K.S.A. 2018 Supp. 21-5801(a)(2), (b)(2) and K.S.A. 2018 Supp. 21-5301(a) (a level 9 felony) in exchange for the State's assurance it would dismiss the remaining counts. Wilson also agreed to pay $65,865 in restitution to the victim organization, Valley Hope Association (Valley Hope).
Wilson entered the guilty pleas as anticipated and at sentencing, the State requested the standard number in the grid box for each count, to be served consecutively, imposition of restitution for the total amount stolen plus the market interest rate, and an order that Wilson's probation would be extended until her restitution obligation was satisfied. Wilson's counsel advised the district court that Wilson was informed there was a possibility her probation could be extended given her sizable restitution obligation. Wilson assured the judge she could pay $500 per month towards the restitution debt.
The district court granted probation terms of 24 months for each of the three counts with 18-, 8- and 6-month underlying prison terms, respectively. It ordered the two lesser prison sentences to run concurrent with one another but consecutive to count 1 for a total underlying prison term of 32 months. It also directed Wilson to pay $65,865 to Valley Hope as restitution and imposed $500 monthly restitution payments as a condition of her probation. The court informed Wilson she was also required "to pay interest on that amount at the rate that would apply to a civil judgment" but did not elaborate further as to the specific rate contemplated. The judge inquired whether either party could offer any insight into its authority to order interest, but both provided negative responses.
Roughly 23 months later, the State moved to revoke Wilson's probation following her commission of new crimes in Texas. Wilson stipulated to committing a new crime, as well as to violations for moving without permission, and being dishonest with her probation officer. The court found Wilson in violation of her probation, revoked the same and imposed the underlying 32-month prison sentence.
Wilson timely brings her case before us for resolution of two claims related to the legality of her sentence.
The district court illegally sentenced Wilson to 24-month terms of probation for her secondary convictions and thereby ultimately lacked jurisdiction to impose the underlying prison terms for those offenses following revocation of her probation.
Wilson's first general contention of error consists of the claim that the district court lacked jurisdiction at the revocation hearing to impose the 14-month prison sentence underlying her secondary convictions. According to Wilson, when the sentencing court imposed 24-month terms of probation for her second and third offenses, it did so in contravention of K.S.A. 2018 Supp. 21-6608(c)(3) and (4), which informs a sentencing court of the appropriate probation term to impose based on the severity level of the offense at issue. Wilson asserts that if the court had complied with the statute, the probation terms for her secondary offenses would have been satisfied by the date of her revocation hearing, thereby rendering their underlying prison terms unavailable.
Wilson acknowledges that she never presented this issue to the district court for its consideration. The general rule is that a new legal theory may not be asserted for the first time on appeal. State v. Hilyard, 316 Kan. 326, 343 515 P.3d 267 (2022). Even so, our Supreme Court has recognized three exceptions to that rule:
"'(1) [T]he newly asserted claim involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) the claim's consideration is necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (3) the district court's judgment may be upheld on appeal despite its reliance on the wrong ground or reason for its decision.'" State v. Allen, 314 Kan. 280, 283, 497 P.3d 566 (2021) (quoting State v. Harris, 311 Kan. 371, 375, 461 P.3d 48 [2020]).
Following a dissection of Wilson's claim, its various components reveal the first two exceptions apply. That is, a determination of whether the district court imposed the appropriate terms of probation for her secondary convictions and, relatedly, whether it had jurisdiction to revoke Wilson's probation and order her to serve her underlying prison sentence for those offenses requires an examination of K.S.A. 2018 Supp. 21-6608. Issues of statutory interpretation present a question of law over which appellate courts have unlimited review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).
Further, to the extent probation terms were imposed that do not properly correspond with Wilson's crimes of conviction, a question arises concerning the legality of her sentence and whether justice has truly been served. An illegal sentence is one (1) imposed by a court without jurisdiction, (2) that does not conform to the statutory provision, either in the character or the term of the punishment authorized, or (3) that is ambiguous with respect to the time and manner in which it is to be served. State v. Lee, 304 Kan. 416, 417, 372 P.3d 415 (2016). K.S.A. 2022 Supp. 22-3504(a) authorizes a court to correct an illegal sentence at any time. That authority extends to appellate courts and grants us the latitude to correct such sentences for the first time on direct appeal. State v. Boswell, 314 Kan. 408, 417-18, 499 P.3d 1122 (2021). The nature of Wilson's claim triggers concerns that her sentence runs contrary to the term of punishment authorized.
Finally, an issue concerning subject matter jurisdiction rounds out Wilson's claims. Jurisdictional questions may be raised at any time, including for the first time on appeal. State v. Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010). And whether jurisdiction exists is a question of law over which our scope of review is unlimited. State v. Dull, 302 Kan. 32, 61, 351 P.3d 641 (2015), cert. denied 577 U.S. 1193 (2016).
A court's decision about whether to consider issues for the first time on appeal is a prudential one. See State v. Gray, 311 Kan. 164, 170, 459 P.3d 165 (2020) (). We find that Wilson has successfully established the purely legal nature of her claim, and the question it raises concerning the notion of justice warrants review of this issue despite being raised for the first time on appeal.
The record before us reflects the district court imposed Wilson's sentence as follows:
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