State v. Ybarra ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,312
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
MEGAN RENEE YBARRA,
Appellant.
MEMORANDUM OPINION
Appeal from Leavenworth District Court; GERALD R. KUCKELMAN, judge. Opinion filed January
28, 2022. Affirmed.
Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.
Megan Williams, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., POWELL and HURST, JJ.
PER CURIAM: Megan Ybarra appeals her sentence of imprisonment—claiming
only that the district court was required to sentence her to drug abuse treatment rather
than prison. This court disagrees, finding that Ybarra's drug abuse and criminal risk-need
assessments did not qualify her for mandatory drug treatment sentencing. The district
court's sentence is affirmed.
1
FACTUAL AND PROCEDURAL BACKGROUND
In March 2020, Ybarra pled no contest to possession of methamphetamine in
violation of K.S.A. 2020 Supp. 21-5706(a), a severity level 5 drug felony. In exchange
for her plea agreement, the State agreed to recommend a presumptive probation sentence.
The presentence investigation (PSI) report indicated a criminal history score of F, which
correlated to a presumptive probation sentence. However, the PSI report also indicated
that Ybarra was on probation for a felony at the time she committed her current offense
and thus a special sentencing rule applied. The special rule gave the district court
discretion to impose a prison sentence even though her current offense presumed a
nonprison sentence. See K.S.A. 2020 Supp. 21-6604(f)(1).
The PSI report also showed that Ybarra had a low score on her drug abuse
assessment compiled under the Substance Abuse Subtle Screening Inventory (SASSI).
Ybarra's criminal risk-need assessment under the Level of Service Inventory—Revised
(LSI-R) was also attached to the PSI report, and it designated Ybarra an overall
maximum risk with a score of 25. As a result, her PSI report listed community
corrections as an option based on her LSI-R score.
At the September 2020 sentencing, both Ybarra and the State requested the district
court follow the terms of the plea agreement. Ybarra also told the district court she
obtained a Regional Alcohol and Drug Assessment Center (RADAC) evaluation and had
been in the process of completing and complying with its recommendations. Exercising
its discretion, the district court declined to follow the parties' recommendations. Instead,
the court relied on the special sentencing rule and sentenced Ybarra to 17 months'
imprisonment. Ybarra appealed.
In May 2021, while her appeal was pending, the State filed a Notice of Change in
Custodial Status that stated Ybarra did not report to serve her sentence, and her
2
whereabouts were unknown. This court subsequently remanded this case to the district
court for a hearing pursuant to State v. Raiburn, 289 Kan. 319, 212 P.3d 1029 (2009), to
determine whether Ybarra absconded from the court's jurisdiction.
On September 10, 2021, the district court held the hearing and determined Ybarra
had absconded. However, less than a week later the State discovered Ybarra had been
arrested on September 7, 2021, in Douglas County and remained in custody there. Later
that month, the State filed a Notice of Change in Custodial Status reflecting Ybarra's
current location. Because Ybarra is back in custody, this court now addresses the merits
of her appeal.
DISCUSSION
On appeal, Ybarra brings only one claim. She contends the district court erred by
sentencing her to imprisonment rather than imposing statutorily mandated drug treatment,
and thus her sentence is illegal. When an offender is convicted of a felony in violation of
K.S.A. 2020 Supp. 21-5706, as Ybarra was here, and meets certain statutory guidelines—
the district court must impose a term of nonprison certified drug abuse treatment. See
K.S.A. 2020 Supp. 21-6824(a)-(c).
A sentence is illegal if it (1) is imposed by a court without jurisdiction; (2) does
not conform to the applicable statutory provisions, either in character or the term of
punishment; or (3) is ambiguous about the time and manner in which it is to be served.
K.S.A. 2020 Supp. 22-3504(c)(1). Whether a sentence is illegal within the meaning of
K.S.A. 2020 Supp. 22-3504 is a question of law over which the appellate court has
unlimited review. State v. Sartin, 310 Kan. 367, 369, 446 P.3d 1068 (2019). An illegal
sentence may be corrected at any time, even if the appellant raises the argument for the
first time on appeal. 310 Kan. 367, Syl. ¶ 2.
3
When an offender has a criminal history within a certain range, which the parties
agree Ybarra has here, and is assigned a risk status from a drug abuse assessment and a
criminal risk-need assessment that meets the criteria for participation in a drug abuse
treatment program, "the sentencing court shall commit the offender to treatment in a drug
abuse treatment program." K.S.A. 2020 Supp. 21-6824(b)(1)-(2), (c). The district court is
required to sentence an offender to drug abuse treatment programs when the offender
meets the statutory requirements—in those cases drug abuse treatment is mandatory.
State v. Andelt, 289 Kan. 763, 217 P.3d 976 (2009) (analyzing a previous, but
substantially similar, version of the drug abuse treatment sentencing statute was
mandatory). Kansas has adopted the LSI-R for the criminal risk-need assessment and the
SASSI as the drug abuse risk status assessment. An offender must have a high-risk score
on the SASSI and a moderate or high-risk score on the LSI-R, along with a qualifying
criminal history score, to be subject to a mandatory drug treatment sentence. See K.S.A.
2020 Supp. 21-6824(c); State v. Swazey, 51 Kan. App. 2d 999, 1002, 357 P.3d 893(2015) (analyzing a prior version of K.S.A. 2020 Supp. 21-6824 with risk status scores
that are identical to the current requirements).
The PSI report indicated Ybarra had a criminal history score of F with a drug
offense severity level 5 resulting in a presumptive probation sentence—which meant she
met one criteria for mandatory drug treatment. The LSI-R gave Ybarra a score of 25 and
identified her risk level as "maximum." The State and Ybarra agree that the LSI-R also
qualified Ybarra for sentencing to mandatory drug treatment. The only dispute is the
consequence of Ybarra's SASSI drug abuse assessment. The PSI report noted her SASSI
score was "low," and she was "not eligible" for mandatory drug treatment.
Ybarra seems to argue that the overall evidence demonstrates she should have
qualified for mandatory drug treatment and that there was no SASSI summary or report
in the record to explain why she had a "low" SASSI score. Ybarra relies on Swazey to
claim that the district court should have considered the mandatory sentencing
4
requirements of K.S.A. 2020 Supp. 21-6824 even though her SASSI score in the PSI
report did not qualify her for mandatory drug treatment. In Swazey, the offender received
a SASSI risk status that qualified Swazey for mandatory drug treatment, but the record
did not indicate whether he had a qualifying LSI-R risk status. There, the record
contained the LSI-R score of 35—but it did not indicate if that numerical score correlated
to a low, moderate, or high-risk status. The district court did not address whether the
offender qualified for mandatory drug treatment and sentenced him to imprisonment.
This case is not like Swazey because here, the district court had both the SASSI and LSI-
R risk status determinations. See 51 Kan. App. 2d at 1005 ("the record is devoid of any
evidence establishing that [the offender] was assigned a moderate or high-risk status by
the LSI-R").
The district court here had both required scores—a high-risk status on the LSI-R
and a low-risk status on the SASSI. The problem for Ybarra is that these scores do not
meet the statutory requirement for mandatory drug treatment sentencing. While it is true
that there was no description, summary, or reason provided for the low risk assigned on
the SASSI—the statute does not require such an explanation. See K.S.A. 2020 Supp. 21-
6824(c). It merely requires a "risk status as determined by the drug abuse assessment,"
which is determined using the SASSI and a "risk status as determined by the criminal
risk-need assessment," which is determined using the LSI-R. K.S.A. 2020 Supp. 21-
6824(c). The district court had both of those "risk status" determinations and
unfortunately for Ybarra, her SASSI drug abuse assessment did not qualify her for
mandatory drug treatment.
The district court did not err when it refused to sentence Ybarra to mandatory drug
treatment under K.S.A. 2020 Supp. 21-6824. Ybarra's sentence is affirmed.
Affirmed.
5