BY THE COURT
with our precedent in State v. Whitesell, 270 Kan.
259, 13 P.3d 887 (2000), the recommended duration of
probation of 24 months for a severity level 7 crime set forth
in K.S.A. 2018 Supp. 21-6608(c)(1)(B) is the presumptive
probation term and the district court's imposition of an
extended term of probation beyond the 24 months constitutes a
departure that must be supported on the record by substantial
and compelling reasons.
of the judgment of the Court of Appeals in 53 Kan.App.2d 355,
388 P.3d 613 (2017).
from Sedgwick District Court; Christopher M. Magana, judge.
of the Court of Appeals affirming in part and reversing in
part the district court is reversed as to the issue subject
to review. Judgment of the district court is reversed, and
the case is remanded with directions.
Clayton J. Perkins, of Capital Appellate Defender Office,
argued the cause and was on the brief for appellant.
A. Isherwood, assistant district attorney, argued the cause,
and Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were with her on the brief for appellee.
V. Hambright petitions this court for review of the Court of
Appeals' decision that affirmed the sentencing
court's imposition of an extended probation term as being
a legal sentence, notwithstanding the lower court's
reliance on an inapplicable statutory provision. Hambright
argues that his sentence is illegal because the panel refused
to apply the mandatory precedent of State v.
Whitesell, 270 Kan. 259, 13 P.3d 887 (2000), which
required the sentencing court to follow departure sentencing
procedures to increase the statutorily recommended term of
probation. We agree; Whitesell required the
sentencing court to state for the record substantial and
compelling reasons to depart from the presumptive duration of
probation and its failure to do so resulted in an illegal
sentence. Accordingly, we vacate the probation portion of
Hambright's sentence and remand to the district court for
and Procedural Overview
to a plea agreement, Hambright pled guilty to felony criminal
damage to property and misdemeanor theft for events that took
place on September 2, 2014. The plea agreement provided that
the State would recommend the presumptive sentence of
probation and restitution of $60, 000. The district court
followed the recommendations for probation and restitution in
this case, but ordered that the probation would commence
after Hambright completed his prison sentence in another case
for which he was being sentenced at the same time. The total
underlying period of incarceration in this case was 29
district court recognized that the "prescribed statutory
period" of probation for Hambright's felony offense
in this case was 24 months. But the court imposed a 36-month
probation term after finding "that the welfare of the
defendant w[ould] not be served by the 24-month statutory
length of probation specifically due to the extremely
significant amount of restitution in this case of $60,
000." The district court also cited Hambright's
criminal history and found it was in the public's best
interest that he repay as much restitution as possible, which
would require a probation term longer than 24 months. The
district court established a restitution payment plan of $500
appealed to the Court of Appeals, challenging the legality of
his sentence and the workability of his restitution plan. On
the first issue, he argued that his sentence is illegal under
K.S.A. 22-3504 because it does not conform to K.S.A. 2018
Supp. 21-6608, the statute addressing probation duration.
Specifically, he pointed out that K.S.A. 2018 Supp.
21-6608(c)(1)(B) sets a 24-month recommended duration of
probation for his severity level 7 felony. He asserted that
the district court erroneously applied K.S.A. 2018 Supp.
21-6608(c)(5) to extend his probation term to 36 months,
because that subsection only applies to severity levels 8
through 10 crimes.
Hambright argued that, pursuant to Whitesell, the
extended probation term was a departure sentence.
Consequently, K.S.A. 2018 Supp. 21-6815(a), and K.S.A. 2018
Supp. 21-6817(a)(3), required the district court to provide
notice to the parties of its intent to depart and then find
substantial and compelling reasons to impose a departure
Court of Appeals agreed with Hambright that K.S.A. 2018 Supp.
21-6608(c)(5) did not apply to his severity level 7
conviction and, therefore, that statute could not serve as
the basis for the district court to increase his probation
term. State v. Hambright, 53 Kan.App.2d 355, 357,
388 P.3d 613 (2017). But the panel sua sponte held that under
the plain language of K.S.A. 2018 Supp. 21-6608(c), the
sentencing judge has discretion to increase the recommended
probation terms set out in K.S.A. 2018 Supp. 21-6608(c)(1)
and (c)(2) up to 60 months or the maximum prison sentence
that could be imposed. 53 Kan.App.2d at 361-63. The panel
held that such a modification does not constitute a departure
sentence as contemplated by K.S.A. 2018 Supp. 21-6815. 53
Kan.App.2d at 363. Consequently, Hambright's sentence of
36 months' probation was not illegal. 53 Kan.App.2d at
Court of Appeals recognized that Whitesell applied
departure sentencing procedures to an increased probation
term. But the panel declared that Whitesell no
longer controlled due to changes in the law.
Hambright, 53 Kan.App.2d at 360-63. Consequently,
the panel held that the sentencing judge had discretion to
sentence Hambright to any term of probation from 24 months to
60 months without the necessity of making any findings and
that such a sentence is not a departure. We granted
Hambright's petition to review that holding.
respect to the issue of the restitution plan's
workability, the panel sided with Hambright. It determined
that the court-ordered $500 per month payment was too large
in relation to Hambright's monthly income and,
consequently, that order was an abuse of discretion. The
panel remanded to the district court to develop a workable
restitution plan. 53 Kan.App.2d at 367. The State did not
cross-petition for our review of the panel's restitution
holding, nor did the State respond in writing to