State v. Penn ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,553
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
TYLER C. PENN,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; ERIC WILLIAMS, judge. Opinion filed February 18, 2022.
Affirmed.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before CLINE, P.J., GREEN, J., and PATRICK D. MCANANY, S.J.
PER CURIAM: Tyler C. Penn challenges the sufficiency of the evidence supporting
the district court's revocation of his probation and the legality of his underlying prison
sentence. We find sufficient evidence supports the district court's decision, and Penn's
sentence was legal when ordered. We affirm both the district court's revocation of Penn's
probation and his sentence.
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FACTS
After Penn pleaded guilty to three crimes that occurred in March 2019, he was
sentenced in accordance with a plea agreement. The district court granted Penn's motion
for dispositional departure and sentenced him to 24 months' probation, with underlying
prison and jail sentences.
In November 2019, the district court extended Penn's probation by 24 months and
imposed a 60-day jail sanction after Penn admitted to violating his probation by
committing a new crime.
In August 2020, the State filed a warrant alleging that Penn had violated the terms
of his probation again. This time, the State alleged that Penn had committed the offenses
of battery, domestic battery, battery against a law enforcement officer, and possession of
a firearm.
At Penn's probation violation hearing, Rocheal Wallace-Kirk, Penn's mother-in-
law, testified. She claimed that she received a call after midnight from her grandchildren.
Her grandson told her to "come get us now." Wallace-Kirk went to Penn's residence and
entered the house.
Upon entering the home, Wallace-Kirk encountered one of her granddaughters and
picked her up, holding her in her arms as she made her way through the residence. Once
she made it to the back of the house, she encountered her daughter, Penn's wife, standing
in the doorway of the bedroom. Wallace-Kirk testified that Penn then emerged from the
bedroom, visibly inebriated, and punched his wife several times in the face. According to
Wallace-Kirk, Penn then punched Wallace-Kirk in the face while she was holding the
baby. Wallace-Kirk testified that Penn then tried to get in his car and leave, but she
followed him outside and parked her car behind his car so that he could not leave.
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Wallace-Kirk stated that her nose was bleeding and very swollen after the
incident, and she thought it might be broken. She testified that she received treatment at
the hospital for her injuries. She also said that, earlier that day, she had seen Penn in
possession of a handgun at the house. She believed he kept this handgun at his business.
Wichita Police Officer Ryan Oliphant, who interviewed Wallace-Kirk at the
hospital, also testified. Officer Oliphant said when he encountered Wallace-Kirk at the
hospital, she had no visible injuries. He said Wallace-Kirk told him Penn hit her, and she
had also seen Penn strike her daughter. He testified she told him that when she first
arrived at Penn's house the door was open. She said she saw Penn kick her daughter and
entered the home in response. Officer Oliphant also stated while interviewing Wallace-
Kirk, they could hear Penn, who was in the emergency room as well, yelling at another
officer. Officer Oliphant testified that Wallace-Kirk appeared visibly shaken in response
to the sound of Penn yelling. Officer Oliphant said once he left the room where he
interviewed Wallace-Kirk, he observed Penn standing up and walking around, yelling
and pointing at the officer.
Penn was the last witness to testify. He said that, on the day of the incident, he and
his wife had attended a cookout at a friend's house. He claimed Wallace-Kirk had been
calling them all day. After they returned home, Wallace-Kirk showed up at his house.
According to Penn, Wallace-Kirk often showed up unannounced to their home,
inebriated. He said Wallace-Kirk walked into the bedroom, inebriated and holding a
handgun, "mad about some money or some stuff with [Penn's] wife." While Wallace-Kirk
was arguing with his wife, Penn claimed he grabbed the gun out of her hand and threw it
over the bed. Wallace-Kirk then picked up a large glass vase that was sitting nearby and
struck him over the head with it. Penn denied hitting Wallace-Kirk or his wife.
Penn testified the blow to his head caused severe bleeding. As he tried to make his
way outside, he lost consciousness. He said when he regained consciousness he was in an
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ambulance on the way to the hospital. Penn claimed that as a result of the blow to his
head, he received lacerations to his head, neck, and shoulders. Penn claimed he received
staples in his scalp and stiches in his neck and shoulders at the hospital.
Penn admitted to cussing at a police officer while at the hospital but denied balling
his fist at the officer or slapping the officer on the arm. Penn said he was angry with the
officer because the officer was asking him questions while doctors were stapling his
scalp, and because the officer told him that he was not a victim.
When asked on cross-examination, Wallace-Kirk denied hitting Penn at any point
on the day of the incident.
Following witness testimony, the State withdrew the allegation of battery against a
police officer and asked the district court to find Penn violated his probation based on the
three remaining allegations. The State urged the district court to find Wallace-Kirk's
testimony credible based on Officer Oliphant's testimony that she appeared scared of the
sound of Penn's voice. The State asked the district court to find Penn's testimony
unreliable because of what he had to lose if found to have violated his probation. Defense
counsel argued Wallace-Kirk's reaction to the sound of Penn's voice did not necessarily
mean she was telling the truth on the stand. He then noted the standard of proof necessary
to establish a probation violation was "incredibly low" but urged the district court to find
that Penn did not violate his probation.
Based on Wallace-Kirk's and Officer Oliphant's testimony, the district court found
that Penn committed the offenses of battery, domestic battery, and possession of a
firearm, and revoked Penn's probation. The district court found Wallace-Kirk's testimony
was credible and backed up by Officer Oliphant's testimony about Penn's demeanor at the
hospital and Wallace-Kirk's reaction to Penn's voice. The district court also made a
finding that Wallace-Kirk's version of events was more credible than Penn's self-serving
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version of events. In revoking Penn's probation, the district court found Penn was not
amenable to probation, had committed new criminal offenses, and was a danger to the
community based on the nature of the violations. The district court imposed the
underlying prison and jail sentences.
On appeal, Penn argues the district court erred by finding that he violated the
terms of his probation.
ANALYSIS
Penn first challenges the sufficiency of the evidence supporting the district court's
finding that he violated his probation. Although the initial decision to impose probation is
an act of grace by the district court, once a defendant is placed on probation, he or she
acquires a conditional liberty interest which is subject to substantive and procedural due
process limits on its revocation. So a probationer may not have his or her probation
revoked unless the State shows that the probationer has violated one of the conditions of
probation. State v. Hurley, 303 Kan. 575, 581, 363 P.3d 1095 (2016). Yet the State need
not establish commission of the violation by proof beyond a reasonable doubt. Rather, the
State need only establish the violation by a preponderance of the evidence. State v.
Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). A "preponderance of the
evidence" means evidence sufficient to show a fact is more probably true than not true. In
re Estate of Moore, 310 Kan. 557, 565, 448 P.3d 425 (2019).
Appellate courts review a district court's factual finding that a probation violation
occurred for substantial competent evidence. State v. Inkelaar, 38 Kan. App. 2d 312, 315,
164 P.3d 844 (2007). Substantial competent evidence is legal and relevant evidence that a
reasonable person might accept as sufficient to support a conclusion. State v. Luna, 271
Kan. 573, 574-75, 24 P.3d 125 (2001).
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In addressing challenges to the sufficiency of the evidence, we review the
evidence in the light most favorable to the State to determine whether a rational fact-
finder could have come to the same conclusion as the fact-finder below. State v. Colson,
312 Kan. 739, 753, 480 P.3d 167 (2021). We do not reweigh evidence, resolve conflicts
in the evidence, or pass on the credibility of witnesses. State v. Aguirre, 313 Kan. 189,
209, 485 P.3d 576 (2021).
The district court weighed the credibility of the witnesses here and resolved their
conflicting stories, finding Wallace-Kirk's testimony was more credible than Penn's self-
serving version of events. While Penn acknowledges that we must defer to the district
court's credibility findings, he argues the district court relied on the uncorroborated
testimony of a single witness (Wallace-Kirk). He says we must review her testimony to
determine if it is so unbelievable as to not be able to sustain the district court's findings.
In support of this argument, Penn cites State v. Matlock, 233 Kan. 1, 4, 660 P.2d 945(1983), where the Kansas Supreme Court held that the uncorroborated testimony of a
prosecutrix was so unbelievable that it was insufficient to sustain a rape conviction. Penn
argues that since Wallace-Kirk's testimony was uncorroborated and refuted by Officer
Oliphant's independent testimony, we should apply Matlock and hold that Wallace-Kirk's
testimony could not sustain the district court's finding.
As the State points out, however, Matlock involved the reasonable doubt standard
applicable to criminal convictions. The State argues that since the full panoply of rights
due in a criminal prosecution do not apply to a probation revocation, Matlock is
inapplicable. See Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 33 L. Ed. 2d
484 (1972).
In announcing its ruling, the court in Matlock explained that it was not repudiating
the rule that the uncorroborated testimony of a witness can convict a defendant of rape.
"However, that rule has always been subject to the rule that her testimony must be
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convincing to the point that a rational factfinder could find the defendant guilty beyond a
reasonable doubt. Here, we do not believe the testimony rises to that level." Matlock, 233
Kan. at 6. Since the court's ruling hinged on the reasonable doubt standard of proof, the
State is correct in arguing that Matlock is distinguishable. The high standard of proof
required to convict Matlock of rape meant that the uncorroborated witness testimony was
not sufficient to sustain his conviction, given the weight of the countervailing evidence.
That same high standard of proof does not apply here.
Furthermore, since Matlock, the Kansas Supreme Court has characterized the
ruling in that case as "aberrant," noting that it "is perhaps the only case of its kind in this
state where the Supreme Court directly weighed the evidence and assessed the credibility
of the prosecutrix to reverse a conviction for rape." State v. Brinklow, 288 Kan. 39, 53,
200 P.3d 1225 (2009). Thus, we decline to apply it.
For us to grant Penn the relief he requests, we would have to reweigh the
evidence, resolve conflicts in the testimony, and find that Penn's testimony was more
credible than Wallace-Kirk's. We have no authority to do any of those things. Penn
cannot overcome the district court's explicit finding that Wallace-Kirk's testimony was
more credible than his own. If Wallace-Kirk's testimony is to be believed, it establishes
that Penn violated the terms of his probation.
Viewing Wallace-Kirk's testimony in the light most favorable to the State, as we
must, we find a rational fact-finder could have concluded that Penn violated the terms of
his probation. We affirm the district court's revocation of his probation.
Penn next argues the district court erred by including his prior conviction for
criminal threat in calculating his criminal history score for his original sentencing.
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Penn concedes that he did not object below to the inclusion of his prior criminal
threat conviction in his criminal history score but argues that he may raise this issue for
the first time in an appeal because an illegal sentence may be corrected at any time.
K.S.A. 2020 Supp. 22-3504(a) authorizes a court to "correct an illegal sentence at any
time." This language has been interpreted to mean that a challenge to the classification of
a prior conviction or adjudication to lower a defendant's criminal history score can be
raised for first time on appeal. State v. Dickey, 301 Kan. 1018, 1034, 350 P.3d 1054(2015). So we may consider this issue, even though Penn raises it for the first time on
appeal.
Whether a district court properly classified a defendant's prior crimes for
sentencing presents a question of law over which appellate courts have unlimited review.
State v. Bradford, 311 Kan. 747, 750, 466 P.3d 930 (2020).
A sentence is illegal if it (1) is imposed by a court lacking jurisdiction, (2) fails to
conform to the applicable statutory provisions, or (3) is ambiguous on the time and
manner that the sentence is to be served. "A sentence is not an 'illegal sentence' because
of a change in the law that occurs after the sentence is pronounced." K.S.A. 2020 Supp.
22-3504(c)(1). A "'[c]hange in the law'" is defined as "a statutory change or an opinion by
an appellate court of the state of Kansas, unless the opinion is issued while the sentence is
pending an appeal from the judgment of conviction." K.S.A. 2020 Supp. 22-3504(c)(2).
The legality of a sentence is thus fixed at a discrete moment in time—the moment
the sentence was pronounced. At that moment, the sentence is either legal or illegal
according to then-existing law. For purposes of a motion to correct an illegal sentence,
neither party can avail itself of later changes in the law. The only exception to this rule is
that a defendant receives the benefit of a change in the law if it occurs while a direct
appeal is pending, because a sentence is not final until the direct appeal is completed.
State v. Murdock, 309 Kan. 585, 591, 439 P.3d 307 (2019).
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The district court sentenced Penn on September 18, 2019. Penn did not timely
appeal his sentence, so by law his sentence became final 14 days after it was pronounced
from the bench. See K.S.A. 2020 Supp. 22-3608(c).
Penn's criminal history worksheet included a 2014 conviction for criminal threat.
Kansas' criminal threat statute criminalizes threats made "with intent to place another in
fear" as well as threats made "in reckless disregard of the risk of causing such fear."
K.S.A. 2020 Supp. 21-5415(a)(1). On October 25, 2019, the Kansas Supreme Court held
that the "reckless disregard" provision of Kansas' criminal threat statute is
unconstitutionally overbroad. State v. Boettger, 310 Kan. 800, 822, 450 P.3d 805 (2019).
Penn's criminal history worksheet does not reveal whether Penn was convicted of
intentional or reckless criminal threat.
Penn acknowledges that Boettger was decided after his sentence was final and that
another panel of this court has already addressed this issue and held that Boettger was a
change in the law, precluding defendants sentenced before the date it was decided from
gaining its benefit under Murdock. See State v. Miller, No. 121,792, 2020 WL 6533257,
at *4 (Kan. App. 2020) (unpublished opinion), rev. denied 313 Kan. 1045 (2021). Penn
argues that Miller was wrongly decided and urges this panel to reach a different
conclusion in his case.
In support of his position, Penn argues that (1) Boettger was a straightforward
application of Virginia v. Black, 538 U.S. 343, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003),
and therefore his sentence was still illegal when pronounced, even though Boettger had
not yet been decided; (2) application of K.S.A. 2020 Supp. 21-6810(d)(9) provides for
relief; and (3) because the district court maintained jurisdiction to modify his sentence
upon revocation of his probation, his sentence was not truly final until imposed by the
district court upon the revocation of his probation in November 2020.
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As the State points out, Miller directly addressed and rejected the first two of
Penn's arguments. In Miller, the panel analyzed both Boettger and Black, explaining that
while the court relied on Black in deciding Boettger, it was Boettger, not Black, that
declared the Kansas reckless criminal threat statute unconstitutional. Miller, 2020 WL
6533257, at *4. As a result, Boettger qualifies as a change in the law under K.S.A. 2020
Supp. 22-3504 and does not render Penn's sentence illegal. The panel also rejected the
argument that K.S.A. 2020 Supp. 21-6810(d)(9) provides relief for defendants sentenced
before the Boettger decision. K.S.A. 2020 Supp. 21-6810(d)(9) states that "[p]rior
convictions of a crime defined by a statute that has since been determined
unconstitutional by an appellate court shall not be used for criminal history scoring
purposes." But as the panel in Miller explained, this provision does not grant defendants
perpetual relief from a sentence that was legal when it was pronounced. Under K.S.A.
2020 Supp. 22-3504 and Murdock, the legality of a defendants' sentence is determined
based on the law in effect when the sentence was pronounced. Miller, 2020 WL 6533257,
at *4. K.S.A. 2020 Supp. 21-6810(d)(9) only prevents including convictions under
statutes that have been found unconstitutional before the time a defendant's sentence is
pronounced. It does not provide defendants an end run around the rule set forth in K.S.A.
2020 Supp. 22-3504 and Murdock. The analysis in Miller is equally applicable here, so
we reject Penn's first two arguments.
Penn's third argument also fails. K.S.A. 2020 Supp. 22-3716(c)(1)(C) provides
that if a probation violation is established, a district court may revoke the violator's
probation and require "such violator to serve the sentence imposed, or any lesser
sentence." That said, while a district court maintains jurisdiction to modify a
probationer's sentence under K.S.A. 2020 Supp. 22-3716, that does not mean the
probationer's sentence is not final until imposed on revocation of probation. Unless a
defendant appeals his or her sentence directly, it becomes final by law 14 days after it
was pronounced from the bench. See K.S.A. 2020 Supp. 22-3608(c). At that moment in
time, it is either legal or illegal, as instructed by Murdock.
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Since Boettger's change of the law occurred after Penn's sentence was pronounced
and became final, we find that Penn's sentence is legal.
Affirmed.
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