State v. Magee ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,373
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
SHEREE L. MAGEE,
Appellant.
MEMORANDUM OPINION
Appeal from Miami District Court; AMY L. HARTH, judge. Opinion filed May 28, 2021.
Affirmed.
Jennifer C. Bates, of Kansas Appellate Defender Office, for appellant.
Jason A. Vigil, assistant county attorney, Elizabeth H. Sweeney-Reeder, county attorney, and
Derek Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., POWELL and CLINE, JJ.
PER CURIAM: After she was convicted of felony theft and false representation
using a computer, Sheree L. Magee was placed on probation. While on probation, Magee
failed to complete restitution payments. The district court extended Magee's probation an
additional two years because of Magee's failure to complete restitution. On appeal,
Magee argues that extending her probation violated several of her state and federal
constitutional rights because she was unable to afford to pay restitution and is essentially
being punished for her lack of wealth. However, she failed to raise these arguments in the
district court, and we elect not to consider them for the first time on appeal.
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FACTUAL AND PROCEDURAL HISTORY
Magee pled guilty to one count of felony theft and one count of felony false
representation using a computer. In December 2015, the district court granted Magee's
request for a dispositional departure and placed Magee on probation for 24 months with
an underlying prison term of 29 months. As part of Magee's basis for seeking a
dispositional departure, Magee argued that probation would allow her to work and pay
the significant amount of restitution owed. The district court judge noted at the
sentencing hearing that one of the substantial and compelling reasons to grant a departure
was the ability of Magee to pay restitution if she were not incarcerated. The court ordered
Magee to pay $66,425 in restitution, an amount that has never been in dispute by the
parties. Payment of the restitution was a condition of Magee's probation.
Just three months later, the State filed a motion to revoke Magee's probation for
receiving new charges including multiple new theft charges and multiple false writing
charges in Johnson County. A warrant was issued for her arrest. She was not brought
back before the Miami County court until over a year later. It turns out, she had been
incarcerated the entire time on other charges. In October 2017, rather than revoke her
probation, the district court extended Magee's probation for an additional 24 months.
Magee again argued that probation was necessary so she could get an education and job
and show her children and the community that she could be successful. All terms of her
new intensive supervision probation related to restitution requirements remained the
same.
Roughly two months shy of the end of her extended probation term, the State filed
a probation violation report alleging that Magee had not paid her restitution and would be
unable to do so before her probation was discharged. The State requested that Magee's
probation be extended an additional 24 months. In December 2019, the court held another
hearing regarding Magee's nonpayment of restitution.
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At the hearing, Magee explained that a collections company oversaw receiving her
restitution payments. According to Magee, she had made 13 payments to the collections
company since June 2018. While discussing her monthly expenses, Magee explained that
she paid for the standard essentials of living, her son's college tuition, and medication for
her son.
Magee's counsel argued that if the case was going to remain in collections, Magee
should no longer be on probation while making payments. Alternatively, counsel
requested that the case be taken out of collections "so the money she's paying is actually
going to restitution."
The court granted the State's request to extend Magee's probation an additional 24
months. The court reasoned that Magee's decision to pay for her son's college tuition was
"a willful decision not to pay restitution." In other words, the district court found that,
based on Magee's own testimony, she had willfully failed to pay restitution by diverting
those funds to pay for her son's college education.
Magee timely appeals.
ANALYSIS
Magee does not contest the district court's decision denying her request to move
the case out of collections. She does not contest that she violated her probation by
willfully failing to pay restitution she agreed to pay as a condition of receiving a
dispositional departure. Instead, Magee raises several constitutional arguments for the
first time on appeal. First, she argues that the district court violated the Kansas
Constitution Bill of Rights by extending her probation solely based on an outstanding
debt. Next, she argues that extending her probation based on her indigency was a
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violation of the Equal Protection Clause. Finally, she argues that extending her probation
impermissibly subjects her to the loss of various rights and privileges.
But before we can reach her arguments, we must examine whether she has
properly preserved these issues for appeal. She concedes that she did not raise any of her
constitutional concerns with the district court.
Generally, new claims—even constitutional ones—cannot be raised for the first
time on appeal. State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015). There are
three exceptions to the rule: (1) The newly asserted theory involves only a question of
law arising on proved or admitted facts and is determinative of the case; (2) consideration
of the theory is necessary to serve the ends of justice or to prevent the denial of
fundamental rights; and (3) the district court is right for the wrong reason. State v.
Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). Parties seeking to raise an issue for
the first time on appeal must assert an applicable exception. Godfrey, 301 Kan. at 1043;
see also Supreme Court Rule 6.02(a)(5) (2021 Kan. Ct. R. 36) ("If the issue was not
raised below, there must be an explanation why the issue is properly before the court.").
Here Magee argues that we should consider her newly raised constitutional claims
because our review is necessary to prevent the denial of a fundamental right and it
involves only a question of law. We decline the invitation for two reasons.
First, the only fundamental right Magee identifies as being at issue in this case is
the right to be free from imprisonment on the basis of debt. If this case involved
imprisoning Magee based on her unpaid restitution that would likely be the end of the
analysis and a fundamental right would be involved. But Magee was not imprisoned
based on her debt—instead her probation was extended after the court found she was
financially able to pay.
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The Kansas Supreme Court addressed a comparable issue in State v. Gordon, 275
Kan. 393, 410, 66 P.3d 903 (2003), where it held that the district court is not
constitutionally required to hold a hearing before extending a person's probation after the
person has failed to pay restitution. The court reasoned that while a hearing may be
required before revoking an individual's probation, the same interests are not at stake
when probation is merely being extended because the extension of probation only
involves a potential loss of liberty. 275 Kan. at 410.
A similar result was reached in State v. McDonald, 272 Kan. 222, Syl. ¶ 5, 32 P.3d
1167 (2011), where the Kansas Supreme Court held that extending an individual's
probation, without appointing counsel, was constitutionally permissible where the
probation was being extended because of a failure to make restitution payments. The
court noted "[t]here is a considerably lower sense of urgency where the probation is
extended in an effort to afford the probationer a greater amount of time in which to pay
the restitution." 272 Kan. 222, Syl. ¶ 5.
The same rationale applies here. The district court did not revoke Magee's
probation, it merely extended it. There is not a fundamental interest at stake in the current
case. See State v. Dunham, 58 Kan. App. 2d 519, 527, 472 P.3d 604 (2020) (noting Court
of Appeals is duty-bound to follow Supreme Court precedent).
Second, although this case can be resolved on the basis of proved or admitted
facts, we are not required to do so. State v. Gray, 311 Kan. 164, 170, 459 P.3d 165 (2020).
The decision to review an unpreserved claim under an exception is a prudential one. State
v. Parry, 305 Kan. 1189, 1192, 390 P.3d 879 (2017). Magee had the opportunity to
present her claims to the district court and failed to do so. Moreover, Magee will have a
future opportunity to present her claims to the district court if she is in fact incarcerated
for failing to pay restitution when she is without the financial means to do so. That is not
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the case here. Magee does not challenge the trial court's finding that she willfully failed
to pay restitution.
In sum, we decline to address the merits of the only issues Magee raises on appeal
because she has failed to preserve her claims, and we elect not to consider them given the
facts and posture of this case.
Affirmed.
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