State v. Brown ( 2020 )

NOT DESIGNATED FOR PUBLICATION
Nos. 121,736
121,737
121,738
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JESSICA L. BROWN,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Opinion filed July 31, 2020.
Dismissed in part, vacated in part, and remanded with directions.
Submitted for summary disposition pursuant to K.S.A. 2019 Supp. 21-6820(g) and (h).
Before MALONE, P.J., MCANANY, S.J., and BURGESS, S.J.
PER CURIAM: Jessica L. Brown was convicted in three cases: 14CR432,
17CR444, and 17CR1077. Her probation was revoked in 17CR1077, and she was sent to
prison to serve her underlying sentence. Brown appeals in all three cases. We granted
Brown's motion for summary disposition under Kansas Supreme Court Rule 7.041A
(2020 Kan. S. Ct. R. 47).
14CR432
In March 2015 Brown pled guilty to arson and three counts of criminal damage to
property, and a jury found her guilty on the remaining charge of aggravated assault. She
received concurrent prison sentences but was placed on probation for 24 months.
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17CR444
In November 2018, Brown pled guilty to aggravated escape from custody. She
received a 19-month prison sentence but was granted probation for 18 months. Her
sentence was to run consecutive to her sentence in 14CR432.
17CR1077
On December 28, 2018, the same day as her sentencing in 17CR444, Brown pled
guilty to violating the Kansas Offender Registration Act. The district court sentenced her
to 29 months' imprisonment but she was granted a departure sentence of probation for 24
months. Her sentence was to run consecutive to her sentences in 14CR432 and 17CR444.
At a later hearing in July 2019 involving all three cases, the district court (1) found
that probation in 14CR4332 had not been extended at an earlier hearing and, therefore,
Brown's probation term in 14CR432 had expired; (2) ordered Brown to serve a 72-hour
jail sanction in 17CR444; and (3) found that Brown had violated the terms of her
probation, revoked her probation, and imposed her underlying sentence in 17CR1077
because her probation was originally granted as the result of a dispositional departure.
Brown appeals in each of these cases, and all three cases were consolidated for
this appeal.
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ANALYSIS
14CR432
In 14CR432, the district court found Brown's probation term had expired before
the probation violation hearing. A review of the record reveals some confusion over the
exact status of 14CR432. It is unclear whether Brown's probation term in 14CR432 had
expired before the July 2019 hearing. Though Brown filed a notice of appeal in this case,
there is no adverse ruling she challenges. (We presume she does not want us to hold that
she remains on probation in 14CR432.) Moreover, the State did not cross-appeal the
district court's determination that probation had expired. Thus, any issue regarding
14CR432 has been waived or abandoned. See State v. Lowery, 308 Kan. 1183, 1231, 427
P.3d 865 (2018). As a result, there is no case or controversy for us to decide. See Manly
v. City of Shawnee, 287 Kan. 63, Syl. ¶ 4, 194 P.3d 1 (2008). The appeal in 14CR432 is
dismissed.
17CR444
In 17CR444, the district court imposed a 72-hour jail sanction. It is unclear from
the record whether Brown has already served this sanction, rendering the issue moot. In
any event, Brown fails to raise any issue with regard to this sanction in this case. She
only references 17CR444 in the background section of her motion for summary
disposition, mentioning her conviction and noting that the district court imposed a 72-
hour jail sanction. This alone does not create an issue for us to resolve. See Lowery, 308
Kan. at 1231. Though the parties did not submit briefs in this case, Brown's duty to raise
an issue to preserve it remains. See State v. Arinwine, No. 112,163, 2015 WL 1947352, at
*1 (Kan. App. 2015) (unpublished opinion). Any claim involving a court ruling in
17CR444 has been waived or abandoned. The appeal in 17CR444 is dismissed.
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17CR1077
17CR1077 involves the district court revoking Brown's probation and ordering her
to serve her underlying prison sentence because she was granted probation as the result of
a dispositional departure.
We review the district court's order sending Brown to prison for any abuse of
discretion. We have de novo review in interpreting any applicable sentencing statute.
State v. Coleman, 311 Kan. 332, 334-35, 460 P.3d 828, 830 (2020).
Judicial discretion is abused if the action is based on an error of fact or law or is
arbitrary, fanciful, or unreasonable such that no reasonable person would have taken the
view adopted by the district court. State v. Jones, 306 Kan. 948, Syl. ¶ 7, 398 P.3d 856(2017).
The district court revoked Brown's probation and ordered her to serve her
underlying prison sentence because probation had been granted as the result of a
dispositional departure. K.S.A. 2017 Supp. 22-3716(c)(9)(B) contains an exception to the
requirement that the court order intermediate sanctions. The exception arises when
probation was originally granted as the result of a dispositional departure. K.S.A. 2017
Supp. 22-3716(c)(9)(B) became effective on July 1, 2017.
Our Supreme Court recently held in Coleman that K.S.A. 2017 Supp. 22-
3716(c)(9)(B) "applies only to probationers whose offenses or crimes of conviction
occurred on or after July 1, 2017." 311 Kan. at 337.
Brown's violation of the Kansas Offender Registration Act occurred on April 1,
2017, before the statutory provision became effective on July 1, 2017. The statute's
dispositional departure exception does not apply to 17CR1077. Thus, the district court
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could not revoke Brown's probation and impose her underlying sentence under that
exception. The order revoking Brown's probation and imposing her underlying sentence
in 17CR1077 is vacated, and the case is remanded to the district court for a new
probation violation hearing with directions to apply the law in effect when Brown
committed her April 2017 crime of conviction.
Dismissed in part, vacated in part, and remanded with directions.
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