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State v. Hambright

Supreme Court of Kansas

August 23, 2019

State of Kansas, Appellee,
Dewayne V. Hambright, Appellant.


         Consistent 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.

         Review of the judgment of the Court of Appeals in 53 Kan.App.2d 355, 388 P.3d 613 (2017).

          Appeal from Sedgwick District Court; Christopher M. Magana, judge.

         Judgment 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.

          Lesley 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.


          JOHNSON, J.

         Dewayne 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 resentencing.

         Factual and Procedural Overview

         Pursuant 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 months.

         The 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 per month.

         Hambright 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.

         Further, 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 sentence.

         The 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 363-64.

         The 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.

         With 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 Hambright's ...

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