State v. Moreno ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,597
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
MIKE M. MORENO,
Appellant.
MEMORANDUM OPINION
Appeal from Wyandotte District Court; MICHAEL A. RUSSELL, judge. Opinion filed May 8, 2020.
Affirmed in part and dismissed in part.
Submitted for summary disposition pursuant to K.S.A. 2019 Supp. 21-6820(g) and (h).
Before ARNOLD-BURGER, C.J., LEBEN, J., and MCANANY, S.J.
PER CURIAM: Mike Moreno appeals the district court's decision to revoke his
probation and order that he serve the underlying sentence on his conviction for
aggravated battery. He argues that the district court should have given him another
chance on probation.
But Moreno admitted to violating his probation; he'd had prior violations; and he
had already served two short periods in jail and 180 days in prison as previous sanctions
for probation violations. Once the district court imposed those intermediate sanctions, it
had the discretion to revoke probation if there were further violations, and generally we
reverse its discretionary decision only if no reasonable person could agree with it. In this
case, a reasonable person could agree with the district court's conclusion that Moreno was
not a suitable candidate for continued probation. We therefore affirm the district court's
judgment.
With that background, we'll review a few more details of how the case got here.
Moreno pleaded no contest to domestic-violence aggravated battery in 2016 and was
placed on 24 months of probation with an underlying 32-month prison sentence that he'd
have to serve if he didn't successfully complete probation. Between 2016 and 2019—
when Moreno's probation was finally revoked and he was sent to serve the prison
sentence—the district court gave Moreno several chances to complete his probation. Each
time, the court found that Moreno had violated his probation. And each time, the court
ordered some intermediate sanction short of having Moreno serve his full 32-month
prison sentence.
Moreno first violated his probation by drinking alcohol, failing to submit urine
samples and pay court fees, and not completing a court-ordered batterers-intervention
program. The court sent Moreno to serve two days in county jail as a sanction. But
Moreno continued to struggle on probation. He again failed to pay court fees, complete
the domestic-violence class, and submit urine samples. He also failed to report to his
probation officer several times and picked up new criminal charges for domestic violence
and a DUI. Despite these many violations of his probation conditions, the court gave him
another chance. It ordered Moreno to serve 180 days in prison as a sanction and extended
his probation by 6 months.
But Moreno once again violated the probation. He was arrested two more times for
domestic-violence offenses, and he continued to violate his probation by failing to
complete the domestic-violence class, pay court fees, submit urine samples, and report to
his probation officer. Moreno stipulated to the violations at a hearing but asked for
leniency. He said that he had completed more than half of the required domestic-violence
class sessions and that he had failed to attend probation-office meetings and submit urine
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samples because he lacked access to transportation. The district court revoked Moreno's
probation and ordered him to serve his original sentence of 32 months in prison.
Moreno has now appealed to this court, arguing that the district court should have
given him another chance at probation. Under the statute in effect when Moreno was on
probation, the court had the discretionary authority to revoke the probation for these
violations. That's because although intermediate sanctions were generally required for an
initial probation violation, once the intermediate sanctions had been used, the court had
the discretion on further violations to revoke probation and impose the prison sentence.
See K.S.A. 2018 Supp. 22-3716(c)(1)(A)-(E).
Since the court had the discretion to do what it did, the question before us is
whether the court abused that discretion. A court abuses its discretion if its decision is
based on factual or legal error or no reasonable person would agree with it. See State v.
Schaal, 305 Kan. 445, 449, 383 P.3d 1284 (2016); State v. Brown, 51 Kan. App. 2d 876,
879-80, 357 P.3d 296 (2015).
We find no abuse of discretion here. Moreno had had plenty of chances to succeed
at his probation; over three years he continued to violate the same conditions of his
probation. An important probation condition was the requirement that Moreno complete a
batterers-intervention educational program. The court noted that this had been ordered
more than two years ago, so Moreno had had plenty of chances to complete it. And he
had continued to be arrested on domestic-violence charges, failed to submit drug tests,
and failed to report to his probation supervisor. So a reasonable person could have
concluded that Moreno didn't deserve any more chances; the court did not abuse its
discretion when it revoked his probation.
Moreno makes one other claim in this appeal—that the district court violated his
rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 4353
(2000), when it used his prior convictions to determine his criminal-history score.
Moreno argues that this increased his underlying sentence without requiring the State to
prove the past convictions to a jury beyond a reasonable doubt. Apprendi held that the
Sixth Amendment to the United States Constitution requires that any fact that increases
the penalty for a crime beyond the prescribed statutory maximum—"[o]ther than the fact
of a prior conviction"—must be proved beyond a reasonable doubt to a jury. 530 U.S. at
490.
But Moreno didn't appeal his underlying sentence within 14 days as required by
K.S.A. 2019 Supp. 22-3608(c). See State v. Inkelaar, 38 Kan. App. 2d 312, 317-18, 164
P.3d 844 (2007) (defendant's notice of appeal timely only as to probation revocation and
not as to original sentence). When Moreno's probation was revoked in March 2019, a
district court could correct an illegal sentence at any time. See K.S.A. 2018 Supp. 22-
3504(a). But a claim that a sentence violates a constitutional provision does not make the
sentence illegal within the meaning of K.S.A. 2018 Supp. 22-3504, so Moreno had only
14 days to appeal his sentence. See State v. Ehrlich, 286 Kan. 923, 925, 189 P.3d 491(2008) (holding that Kansas courts do not have jurisdiction to decide an appeal that is not
taken within the period fixed by statute). We therefore do not have jurisdiction to
consider this second issue.
Even if we did, the Kansas Supreme Court has already considered the matter and
confirmed that Apprendi does not keep the court from considering the mere fact of a prior
conviction when applying the Kansas sentencing guidelines. State v. Overman, 301 Kan.
704, 716, 348 P.3d 516 (2015); State v. Ivory, 273 Kan. 44, 47-48, 41 P.3d 781 (2002).
So the district court did not violate Moreno's rights when it used his prior criminal history
to apply the Kansas sentencing guidelines.
On Moreno's motion, we accepted this appeal for summary disposition under
K.S.A. 2019 Supp. 21-6820(g) and (h) and Supreme Court Rule 7.041A (2019 Kan. S.
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Ct. R. 47). We have reviewed the record available to the sentencing court, and we find no
error in its decision to revoke Moreno's probation.
We affirm the district court's judgment; we dismiss Moreno's challenge to his
sentence for lack of jurisdiction.
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