State v. Bailey

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NOT DESIGNATED FOR PUBLICATION

No. 116,851

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

KERON D. BAILEY,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed February 16,
2018. Affirmed.

Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before MCANANY, P.J., GARDNER, J., and TIMOTHY L. DUPREE, District Judge, assigned.

PER CURIAM: After multiple probation violations Keron D. Bailey's probation was
revoked, and he was sentenced to 233 months in prison. He appeals, claiming the district
court abused its discretion in revoking his probation and erred in ordering him to serve
233 months in prison. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND


Keron Bailey was charged with one count of aggravated robbery, a severity level 3
person felony. Bailey entered into an Alford plea in which he pled guilty to aggravated
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robbery, and the parties agreed to recommend a departure to probation through the
Kansas Department of Corrections. See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct.
160, 27 L. Ed. 2d 162 (1970). At sentencing on June 7, 2013, the district court followed
the plea agreement and sentenced Bailey to 36 months of probation with an underlying
prison sentence of 247 months.

Bailey was arrested on July 8, 2013, for various probation violations: using
methamphetamine, marijuana, and alcohol; failing to report police contact to his
Intensive Supervision Officer (ISO); associating with a known gang member; and two
incidents of failing to report to his ISO. Bailey waived his right to an evidentiary hearing
and admitted the violations. The court imposed a 60-day jail sanction pursuant to K.S.A.
2013 Supp. 22-3716(c), extended his probation 36 months, and ordered drug and alcohol
treatment.

In 2014, Bailey was again arrested for probation violations including failure to
follow staff instructions by engaging in horseplay, interacting with female clients, being
in areas of the facility he should not have been, refusing to return his radio, failing to
report as directed, and verbally threatening a staff member. Bailey admitted the probation
violations, and the court sentenced him to a modified prison term of 200 months,
declining to reinstate probation.

Bailey appealed the revocation of his probation. The Court of Appeals affirmed
the finding that Bailey violated his probation but vacated the district court's disposition
upon finding that it did not make specific findings when revoking Bailey's probation as
required by K.S.A. 2013 Supp. 22-3716(c)(4). State v. Bailey, No. 112,790, 2015 WL
8590550, at *3-4 (Kan. App. 2015) (unpublished opinion). The case was remanded with
directions to the district court to either impose an intermediate sanction or set forth with
particularity its reasons for ordering Bailey to serve his underlying prison sentence in
accordance with the statute. 2015 WL 8590550, at *4.
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At the remand hearing on March 25, 2016, the court imposed a sanction of three
days in prison and reinstated probation, extending it for three years. The district court
also held that the original underlying prison sentence of 247 months was reinstated when
this court set aside the prior disposition, which included the modified 200-month prison
sentence.

The next month, a warrant was filed alleging Bailey again violated the conditions
of his probation by testing positive for methamphetamine, drinking alcohol, failing to
report to community corrections, failing to report to his ISO, failing to notify his ISO of a
change of address, and absconding from supervision. Following an evidentiary hearing,
the district court determined that Bailey violated the conditions of his probation as
described in the warrant, except for the absconding allegation. The court revoked Bailey's
probation and imposed a modified prison sentence of 233 months after finding that
Bailey was a public safety risk and his welfare would not be served by another sanction.
Bailey appeals both the district court's decision to revoke his probation and impose a
prison sentence as well as the district court's sentence of 233 months in prison.

ANALYSIS


A district court may revoke probation upon a factual finding that the terms of
probation were violated. State v. Walker, 260 Kan. 803, 808, 926 P.2d 218 (1996). The
decision to revoke probation is within the discretion of the district court. State v. Graham,
272 Kan. 2, 4, 30 P.3d 310 (2001). A judicial action constitutes an abuse of discretion if
(1) no reasonable person would take the view adopted by the trial court; (2) it is based on
an error of law; or (3) it is based on an error of fact. State v. Marshall, 303 Kan. 438, 445,
362 P.3d 587 (2015). The party asserting the trial court abused its discretion bears the
burden of showing such abuse of discretion. State v. Rojas-Marceleno, 295 Kan. 525,
531, 285 P.3d 361 (2012).
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The district court's ability to revoke probation is limited by statute. K.S.A. 2016
Supp. 22-3716(c)(1)(A)-(E) provides a system of intermediate sanctions the court must
impose on an individual who violates the conditions of his or her probation. Part of that
statute, though, allows the court to revoke probation instead of applying intermediate
sanctions if it "finds and sets forth with particularity the reasons for finding that the safety
of members of the public will be jeopardized or that the welfare of the offender will not
be served by such sanction." K.S.A. 2016 Supp. 22-3716(c)(9). To satisfy the
particularity provision, the court's findings must be specific and must contain sufficient
detail. State v. Huskey, 17 Kan. App. 2d 237, Syl. ¶ 2, 834 P.2d 1371 (1992). Mere
conclusory statements regarding probation violations do not meet the particularity
requirement of the statute. State v. McFeeters, 52 Kan. App. 2d 45, 48-49, 362 P.3d 603
(2015). Instead, the district court must state the connection between the reasons for
revoking the defendant's probation and the danger the defendant poses to his or her
welfare or to public safety by remaining on probation. State v. Miller, 32 Kan. App. 2d
1099, 1102-03, 95 P.3d 127 (2004). To make the connection, the findings must
specifically articulate the reasons public safety will be jeopardized without revoking
probation. State v. Davis, No. 111,748, 2015 WL 2137195, at *3 (Kan. App. 2015)
(unpublished opinion).

In this case, the district court made sufficiently particularized findings that
imposing the underlying prison sentence was the best way to serve both public safety and
Bailey's own welfare. In support of revoking his probation, the court found that Bailey's
drug and alcohol use constituted a risk to himself and the public, especially as Bailey
admitted it affected his mind and ability to remember things; that Bailey put himself in
dangerous environments and risky situations such as trespassing and squatting overnight;
that his criminal history establishes a propensity to commit violent offenses including
robbery, stalking, terroristic threats, and false imprisonment; that Bailey violated his
probation multiple times; and that he was not taking advantage of the conditions of
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probation and treatment options available to him. The court concluded its findings by
stating:

"These prior court interventions also raise public safety concerns, in that he's had
numerous court interventions throughout his life, even beyond this case, residential,
sanctions, so we've really used everything that's available and despite these interventions,
he continues to have problems with drugs. And I'm also concerned about his safety, that
putting himself in dangerous situations he could get hurt, committing some sort of crime
under the influence of drugs and alcohol could easily be hurt, and then just simply the
risks of overdosing, death, serious risk to your body for using methamphetamine and
alcohol.
"And all those give me reason to think there's public safety concerns and offender
welfare, not served by any other sanction. And I'll go ahead and revoke and impose the
underlying sentence."

The court's particularized findings support its decision to revoke probation to best
serve public safety and Bailey's own welfare.

Bailey claims that his welfare would be best served not by serving the underlying
prison sentence but by drug and alcohol treatment. Bailey contends that the trial court's
finding that his welfare would be best served by reinstating the underlying prison
sentence is "illogical and unreasonable" and "contradictory to the findings of the court."
He argues that this amounts to an abuse of discretion. However, Bailey had already been
given intermediate sanctions, and the court previously ordered him to complete a drug
and alcohol evaluation. Despite these opportunities, Bailey continued using drugs and
alcohol and violating his probation, which the court acknowledged when it told Bailey,
"[T]here's just nothing probation's going to help you with."

The trial court's findings are more than mere conclusory allegations, and they
satisfy the statute's particularity requirements regarding public safety and Bailey's
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welfare. Additionally, Bailey did not meet his burden of showing that the district court
abused its discretion by entering a decision based on an error of law, based on an error of
fact, or that no reasonable person would agree with. The district court did not abuse its
discretion by imposing the underlying prison sentence.

Bailey argues that the district court erred in imposing his 233-month prison
sentence because it had previously modified the sentence to 200 months. However, this
issue is not timely and not properly before this court. The district court determined that
by revoking the previous disposition, including the modified sentence, on March 25,
2016, the Court of Appeals' decision effectively reinstated the original 247-month prison
sentence. Bailey's appeal on June 14, 2016, was only timely as to the revocation
occurring on June 8, 2016—not the reinstatement of the 247-month underlying prison
sentence that occurred on March 25, 2016. See K.S.A. 2016 Supp. 22-3608(c) (defendant
has 14 days to appeal a judgment of a district court). Therefore, this court does not have
jurisdiction to review Bailey's challenge of his sentence, as he did not file a timely appeal
from the judgment of the district court on March 25, 2016.

Besides, even if we were to review this claim, Bailey is still not entitled to relief
for two reasons.

First, Bailey is incorrect in his contention that when the Court of Appeals
remanded the disposition, the order did not address the modification of the underlying
sentence from 247 to 200 months. Bailey argues, without support, that the underlying
sentence and the rest of the court's disposition should be treated separately. In reality, the
Court of Appeals vacated the trial court's disposition in its entirety, which included the
modified sentence. Bailey, 2015 WL 8590550, at *4 ("We vacate the court's disposition
and remand this case to the district court for a new hearing at which the district court
could either impose an intermediate sanction under K.S.A. 2013 Supp. 22-3716[c][1] or,
in the alternative, set forth with particularity its reasons for invoking the exceptions under
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K.S.A. 2013 Supp. 22-3716[c][9] prior to ordering Bailey to serve his underlying prison
sentence."). The 200-month underlying sentence was no longer in effect, and the original
247-month underlying sentence was reinstated and effective.

Second, Bailey is incorrect in claiming that the 233-month sentence was
presumptively vindictive. To begin, as discussed above, by revoking the previous
disposition, we reinstated the underlying sentence of 247 months. Therefore, because the
233-month sentence was lower than the underlying sentence, it cannot be considered
presumptively vindictive. However, even if the 200-month sentence was in place before
Bailey was resentenced to 233 months, as he claims, it would still not amount to
presumptive vindictiveness.

Due process prohibits an individual from having his or her sentence increased at
resentencing if the increase is motivated by vindictiveness or retaliation. North Carolina
v. Pearce, 395 U.S. 711, 725-26, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled on
other grounds by Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865
(1989). When resentencing results in a seemingly unjustified enhancement of an
individual's sentence, there is a presumption that the new sentence is a result of
vindictiveness. State v. Walker, 283 Kan. 587, 616, 153 P.3d 1257 (2007). When the
presumption of vindictiveness applies, it is the sentencing court's burden to prove that the
increased sentence did not result from vindictiveness. State v. Rinck, 260 Kan. 634, 642,
923 P.2d 67 (1996). To do so, the court must state the objective reasons that justify an
enhanced sentence on the record. Texas v. McCullough, 475 U.S. 134, 142-43, 106 S. Ct.
976, 89 L. Ed. 2d 104 (1986); Pearce, 395 U.S. at 726.

An increased sentence upon resentencing does not always trigger a presumption of
vindictiveness. A sentence that is within the presumptive prison sentence range is
justified; thus there is no presumption of vindictiveness when the second sentence is a
presumptive prison sentence, even if it was increased. State v. Williams, No. 115,119,
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2017 WL 2494954, at *7 (Kan. App. 2017) (unpublished opinion), petition for rev. filed
July 10, 2017; see State v. Cooper, 275 Kan. 823, 827, 69 P.3d 559 (2003) ("A criminal
sentence that is within statutory limits will not be disturbed on appeal absent a showing
of abuse of discretion or vindictiveness on the part of the sentencing court.").

"A presumptive prison sentence under the sentencing guidelines is statutorily justified as
the sentence for the specific crime of conviction—that is precisely what makes it
presumptive. That is why we cannot say that the imposition of a presumptive sentence on
remand or at resentencing, though it may increase an individual's sentence, is an
unjustified enhancement that gives rise to a presumption of vindictiveness. Instead, that
vindictiveness must be proven by the challenger." Williams, 2017 WL 2494954, at *7.

Without a presumption of vindictiveness, the burden of proof is on the challenger
to show that the enhanced sentence was motivated by vindictiveness. Cooper, 275 Kan. at
878; Rinck, 260 Kan. at 641-42.

This case does not warrant a presumption of vindictiveness. The presumptive
sentencing range for Bailey's crime—aggravated robbery, a severity level 3 person
felony—has a range of 221-233-247 months, and the imposed prison sentence upon
rehearing was 233 months. Because the sentence was within the presumptive range, the
presumption of vindictiveness does not apply. Thus to prevail, Bailey had the burden of
affirmatively proving the district court was motivated by vindictiveness in imposing his
sentence.

Bailey does not argue actual vindictiveness in this case. Instead, he puts the
burden of proof on the court by insisting that it must articulate its reasons for imposing an
enhanced sentence. As discussed, a court must only articulate such reasons when a
presumption of vindictiveness applies, which it does not here. Even if Bailey did claim
the court acted vindictively, he argues no additional facts that show the court was acting
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vindictively or otherwise maliciously or unreasonably in imposing a 233-month prison
sentence.

Bailey cannot show that the trial court acted vindictively or otherwise erred in
imposing the presumptive prison sentence of 233 months.

Affirmed.