State v. Beech

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NOT DESIGNATED FOR PUBLICATION

No. 121,062

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

NATHAN ALAN BEECH,
Appellant.


MEMORANDUM OPINION

Appeal from Atchison District Court; ROBERT J. BEDNAR, judge. Opinion filed October 4, 2019.
Affirmed.

John R. Kurth, of Atchison, for appellant.

Sherri L. Becker, county attorney, and Derek Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., MALONE, J., and DANIEL D. CREITZ, District Judge, assigned.

PER CURIAM: Nathan Alan Beech appeals his sentence following his conviction of
violation of a protective order. Beech claims the district court should have sentenced him
to probation. Finding no abuse of discretion, we affirm the district court's judgment.

FACTS

Beech had an on-again, off-again relationship with Melissa Jenkins for six years
and they have a child together. In July 2018, Jenkins obtained a protection from abuse
order which prohibited Beech from contacting or harassing Jenkins. On July 31, 2018, the
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State charged Beech with violation of a protective order based on his July 20, 2018
contact with Jenkins. Beech later pled guilty to the charge. On April 1, 2019, the district
court sentenced Beech to one year in jail with authorized work release and imposed court
costs and fees. During sentencing, the district court noted that Beech had 21 prior
convictions, had been through the system before, and still maintained that he did nothing
wrong. The district court denied Beech's request for probation.

On April 5, 2019, Beech filed a motion to reconsider or in the alternative a motion
for probation. Beech argued "that a sentence of one year, while within the Court's
discretion and within the law, is the maximum sentence allowed and should be
reconsidered or reduced." On April 8, 2019, the district court held a hearing on Beech's
motion to reconsider. Beech argued that he should be granted probation because the jail
sentence could cost him his job and because he had an upcoming court case in Jefferson
County. After hearing from the parties, the district court modified Beech's sentence to 30
days in jail followed by 1 year of supervised probation. The court again authorized work
release. Beech timely filed a notice of appeal and posted an appeal bond in district court.

ANALYSIS

On appeal, Beech argues that both the original sentence of 1 year in jail and the
modified sentence of 30 days in jail were unreasonable given his work history, his
upcoming court date in another case, and his allegation that Jenkins initiated contact with
him. Beech argues that, based on these facts, the district court should have sentenced him
to probation. The State argues that both the original and modified sentence were within
the statutory limit and thus within the district court's discretion. The State also argues that
based on Beech's 21 prior convictions, he was not a good candidate for probation.

We begin by observing that we need not address Beech's claim that his original
one-year sentence was an abuse of discretion. On April 8, 2018, the district court
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modified Beech's original sentence from 1 year to 30 days in jail, which it was authorized
to do in a misdemeanor case. By modifying the sentence, the district court replaced the 1-
year sentence with the 30-day sentence. Thus, Beech's argument that the original sentence
was an abuse of discretion is moot because the one-year sentence is no longer in effect.
See Mundy v. State, 307 Kan. 280, 288, 408 P.3d 965 (2018) (describing the mootness
doctrine as requiring the court to "'determine real controversies relative to the legal rights
of persons and properties which are actually involved in the particular case'").

Beech was convicted of violation of a protective order, a class A person
misdemeanor. K.S.A. 2018 Supp. 21-5924(a)(1), (b)(1). For a class A misdemeanor, "the
sentence . . . shall be a definite term of confinement in the county jail which shall be
fixed by the court and shall not exceed one year." K.S.A. 2018 Supp. 21-6602(a)(1). A
criminal sentence within the statutory limits will not be disturbed on appeal "absent a
showing of abuse of discretion or vindictiveness on the part of the sentencing court."
State v. Cooper, 275 Kan. 823, 827, 69 P.3d 559 (2003).

The district court's imposition of the 30-day sentence was within the 1-year
statutory limit. Beech does not allege that the district court was vindictive. Thus, we will
not disturb the district court's sentence unless it resulted from an abuse of discretion.
Judicial discretion is abused if the decision (1) is arbitrary, fanciful, or unreasonable; (2)
is based on an error of law; or (3) is based on an error of fact. State v. Gonzalez-
Sandoval, 309 Kan. 113, 126-27, 431 P.3d 850 (2018). The party asserting the district
court abused its discretion bears the burden of showing the abuse of discretion. State v.
Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018).

Beech does not allege that the district court's sentence was an error of law or fact,
only that it was unreasonable given his work history, his upcoming court date in another
case, and his allegations that Jenkins initiated contact with Beech. Beech relies in part on
the testimony and evidence presented at the hearing on the motion to revoke bond as
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proving his claim that Jenkins initiated contact with him. But the evidence presented at
the motion to revoke bond had to do with conduct on September 11, 2018, and is the
alleged factual basis for a separate violation of a protective order case against Beech.
Beech presented no evidence that Jenkins initiated the contact on July 20, 2018. In fact,
the State noted at sentencing that on July 20, 2018, Beech approached Jenkins at a
festival downtown and started an argument with her.

In any case, Beech's allegation that Jenkins initiated contact, whether true or not,
does not make the district court's sentence unreasonable. The Kansas Supreme Court
recently explained that the protected person does not exercise any discretionary right to
enforce a protection from abuse order, rather the order restrains the defendant's actions as
a matter of law. State v. Chavez, 310 Kan. 422, 447 P.3d 364, 373 (2019) (stating also
that "the protected person under a PFA order does not have the authority to unilaterally
modify the court order by waiving its restraints or consenting to its violation"). Beech
conceded at sentencing that he knew there was a protection order against him and it was
his "own stupidity" that led him to violate the order.

Beech has not shown that being sentenced to 30 days in jail while having other
pending cases or having a job constitutes an abuse of discretion. The district court
authorized work release for the 30-day term, so that order should help Beech keep his
job. In imposing the original sentence, the district court noted that Beech has 21 prior
convictions, has been through the system before, and still maintains that he did nothing
wrong. A reasonable person could agree that Beech needs to serve some jail time for this
violation based on his many prior convictions. Thus, Beech has failed to show that the
district court abused its discretion in in sentencing him to 30 days in jail.

Affirmed.