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State v. Allen

Court of Appeals of Kansas

November 17, 2017

State of Kansas, Appellee,
v.
Marcus W. Allen, Appellant.

         SYLLABUS BY THE COURT

         1. When a defendant is serving probation in more than one case at the same time and a district court enters sanctions in more than one case under the provisions of subsections (c)(1)(B), (c)(1)(C), (c)(1)(D), or (c)(11) of K.S.A. 2016 Supp. 22-3716, the sanctions must be imposed concurrently.

         2. When the court's ruling would have no practical effect on the parties, the case is moot. An appellate court may still address an issue presented in a moot case if the issue is capable of repetition in other cases and is of public importance.

         Appeal from Geary District Court; Steven L. Hornbaker, judge.

          Sam Schirer, of Kansas Appellate Defender Office, for appellant.

          Jason B. Oxford, assistant county attorney, Krista Blaisdell, county attorney, and Derek Schmidt, attorney general, for appellee.

          Before Malone, P.J., Leben, J., and Kevin P. Moriarty, District Judge, assigned.

          LEBEN, J.

         While Marcus William Allen was on probation in two cases, he violated the terms of his probation. In one case, the district court gave Allen a 60-day stay in jail as a sanction for the violation-a sanction authorized by statute, specifically K.S.A. 2016 Supp. 22-3716(c)(11). In a second case, the district court gave Allen another 60-day jail term as a sanction. And the court ordered the two sanctions be served consecutively for a total of 120 days.

         Allen objected, noting that the neighboring section of the same statute, K.S.A. 2016 Supp. 22-3716(c)(10), provides that "[i]f an offender is serving multiple probation terms concurrently, any violation sanctions imposed . . . pursuant to subsection (c)(11), shall be imposed concurrently." The district court overruled Allen's objection, and he appealed.

         We agree with Allen. These statutory provisions are quite clear. The district court can enter a sanction of up to 60 days in jail for a probation violation, but when the defendant is serving more than one probation at the same time, any jail time ordered as a sanction for violations must be ordered to run concurrently (meaning they would all run at the same time), not consecutively (meaning that they would be added together).

         The underlying facts behind this appeal are straightforward. Allen pled no contest in 2013 to forgery. The district court convicted him based on that plea and sentenced him to probation for 18 months (with an underlying 8-month prison term to be served if he didn't successfully complete probation).

         While on probation in that case, Allen committed two new offenses-possession of methamphetamine (a felony) and possession of marijuana (a misdemeanor). That obviously violated the terms of his probation; every probation includes a requirement that the defendant obey the law while on probation. So the district court sent Allen to jail for 30 days as a sanction for violating probation. Separately, in a new criminal case, Allen pled guilty to the new crimes, was convicted, and was sentenced to probation.

         Unfortunately, Allen again violated his probation. This resulted in separate hearings-presided over by different judges-in the two ...


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