Patricia Atwell, defendant, appeals the trial court's denial of
presumptive probation as a first-time offender convicted of an E
felony. K.S.A. 1989 Supp. 21-4606a and K.S.A. 1989 Supp.
21-4606b. We affirm in part and remand for further proceedings.
On appeal Atwell argues the trial court abused its discretion
in finding sufficient facts to overcome the presumption of
probation and in failing to consider assignment to community
corrections. K.S.A. 1989 Supp. 21-4606a and K.S.A. 1989 Supp.
The most recent amendment to K.S.A. 21-4606a became effective
July 1, 1989, and on the same date K.S.A. 1989 Supp. 21-4606b was
added to the sentencing code. L. 1989, ch. 92, §§ 3, 13. Atwell
was sentenced on January 25, 1990. K.S.A. 1989 Supp. 21-4606a
"The presumptive sentence for a person who has never
before been convicted of a felony, but has now been
convicted of a class D or E felony or convicted of an
attempt to commit a class D felony shall be
probation, unless the conviction is of a crime
specified in article 34, 35 or 36 of chapter 21 of
Kansas Statutes Annotated or the crime is a felony
violation of K.S.A.
65-4127b, and amendments thereto, which involved the
manufacture, sale, offer for sale or possession with
intent to sell such controlled substances. In
determining whether to impose the presumptive
sentence, the court shall consider any prior record
of the person's having been convicted or having been
adjudicated to have committed, while a juvenile, an
offense which would constitute a felony if committed
by an adult. If the presumptive sentence provided by
this section is not imposed, the provisions of K.S.A.
1989 Supp. 21-4606b shall apply." (Emphasis added.)
K.S.A. 1989 Supp. 21-4606b continues:
"(1) If probation is not granted pursuant to K.S.A.
21-4606a, and amendments thereto, the presumptive
sentence for a person convicted of a class D or E
felony shall be assignment to a community
correctional services program on terms the court
"(2) In determining whether to impose the
presumptive sentence provided by this section, the
court shall consider whether any of the following
aggravating circumstances existed:
"(a) Whether the crime is a felony violation of
K.S.A. 65-4127b and amendments thereto which involved
the manufacture, sale, offer for sale or possession
with intent to sell such controlled substances;
"(b) whether the crime is a crime specified in
article 34, 35, or 36 of chapter 21 of the Kansas
Statutes Annotated; or
"(c) any prior record of the person's having been
convicted of a felony or having been adjudicated to
have committed, while a juvenile, an offense which
would constitute a felony if committed by an adult."
Although the statutes above are the most directly relevant in
this case, a sentencing judge must also consider K.S.A. 21-4601
and K.S.A. 21-4606.
K.S.A. 21-4601 states the sentencing objective of the
corrections system; whereas, K.S.A. 21-4606(2) sets forth
specific criteria to be considered by the sentencing court in
fixing the minimum term of imprisonment. A trial court's failure
to make a detailed statement of the factors considered by the
court in imposing sentence does not necessarily constitute an
abuse of discretion. State v. Jennings, 240 Kan. 377, 381,
729 P.2d 454 (1986).
Several cases have discussed the need to consider the factors
in K.S.A. 21-4601 and K.S.A. 21-4606 when considering K.S.A. 1989
Supp. 21-4606a. See State v. Tittes, 245 Kan. 708, 784 P.2d 359
(1989); State v. VanReed, 245 Kan. 213, 777 P.2d 794 (1989). In
both Tittes and VanReed, the sentencing judge failed to
discuss the statutory factors in K.S.A. 21-4606 in sentencing to
than granting probation. Both cases were remanded for
In this case the trial court did consider and state the factors
considered in sentencing. Under K.S.A. 21-4606(2)(b) Atwell
violated her fiduciary duty and stole a substantial amount of
money entrusted to her. Under (2)(c) the act was intentional and
occurred over a five-year period. Under 2(f) the victim was an
incapacitated member of the Atwell family. The trial court fully
considered the sentencing factors and found the presumption of
probation in K.S.A. 1989 Supp. 21-4606a overcome.
Here the district court did not, however, take the next step
required by statute and consider placement in community
corrections as required by K.S.A. 1989 Supp. 21-4606b. Therefore,
this case must be remanded for such consideration, even though
the end result may be the current sentence.
Denial of probation is affirmed. The case is remanded for
consideration of sentencing to community corrections as ...