State v. Sanders

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NOT DESIGNATED FOR PUBLICATION

Nos. 119,977
119,978
119,979
119,980

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SAMMIE JO SANDERS,
Appellant.


MEMORANDUM OPINION

Appeal from McPherson District Court; JOHN B. KLENDA, judge. Opinion filed August 30, 2019.
Affirmed.

Debra J. Wilson, of Capital Appeals and Conflicts Office, for appellant.

Amanda G. Voth, chief deputy county attorney, Gregory T. Benefiel, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before BUSER, P.J., GREEN and MALONE, JJ.

PER CURIAM: Sammie Jo Sanders appeals the district court's order revoking her
probations and requiring her to serve her underlying prison sentences. Sanders claims the
district court abused its discretion by relying on impermissible considerations to revoke
her probations. Finding no reversible error, we affirm.


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FACTUAL AND PROCEDURAL BACKGROUND

This consolidated appeal involves four of Sanders' criminal cases in which the
district court revoked her probations and ordered her to serve the underlying sentences.
Those four cases are summarized below.

2013 Possession of Methamphetamine Case

In 2013, Sanders was arrested after a traffic stop when officers found a scale with
evidence of methamphetamine. Sanders pled no contest to possession of
methamphetamine. The district court sentenced her to probation with an underlying
sentence of 13 months in prison. Sanders' probation in this case was extended twice. As a
result of these probation extensions, Sanders was still serving probation on this case in
September 2017.

2014 Trafficking Contraband Case

In 2014, while in the McPherson County Jail, Sanders' tested positive for having
ingested amphetamine or methamphetamine. Correctional officers searched Sanders' cell
and found three plastic baggies containing methamphetamine. Sanders pled no contest to
trafficking contraband in a correctional institution, which carried a presumptive prison
sentence. But the district court granted Sanders a dispositional departure and sentenced
her to probation with an underlying sentence of 41 months in prison.

July 2015 Possession of Methamphetamine with Intent to Distribute Case

In July 2015, a police officer stopped a vehicle driven by Sanders and noticed that
she was trying to hide a bag under the car seat. The officer searched the bag and found
syringes, a plastic bag containing methamphetamine, and many smaller plastic bags
commonly used for distributing drugs. Sanders pled no contest to possession of
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methamphetamine with intent to distribute, which carried a presumptive prison sentence.
At sentencing, the district court granted Sanders' motion for a dispositional departure and
sentenced her to probation with an underlying sentence of 111 months in prison. The
district court ordered this sentence to run consecutive to the sentences imposed in
Sanders' previous 2013 and 2014 cases.

November 2015 Possession of Methamphetamine Case

In November 2015, a police officer observed Sanders driving a vehicle with a
suspended driver's license. An inventory car search discovered a syringe containing a
small amount of methamphetamine. Sanders was found guilty upon her plea of no contest
to possession of methamphetamine. The district court sentenced Sanders to probation
with an underlying sentence of 20 months in prison. The district court ordered the
sentence to run consecutive to Sanders' 2013, 2014, and July 2015 cases.

Hearing on Motion to Revoke Probations

On September 7, 2017, Sanders' intensive supervision officer moved to revoke her
probations in all four cases after she was convicted of unauthorized use of a vehicle in
Texas. The motion alleged several probation violations. The alleged violations in the
2013 and 2014 cases were:

 Sanders used methamphetamine twice since returning to Kansas in April 2017;
 Sanders tested positive and admitted to consuming alcohol;
 Sanders failed to report to community corrections within a reasonable time after
returning to Kansas;
 Sanders failed to attend five scheduled office visits;
 Sanders was convicted of possession of methamphetamine with intent to distribute
in her July 2015 case;
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 Sanders was convicted of possession of methamphetamine in her November 2015
case;
 Sanders was convicted of interference with law enforcement, driving while
suspended, and driving without liability insurance in 2016;
 Sanders was again convicted of driving while suspended and driving without
liability insurance in 2016; and
 Sanders was convicted of unauthorized use of a vehicle in Texas in August 2017.

The motion to revoke probations in Sanders' July 2015 and November 2015 cases
contained similar allegations, but included only the 2017 Texas conviction as an occasion
when she violated the law.

The district court held a consolidated hearing on the motions to revoke and heard a
new case against Sanders in which she was charged with theft and five counts of forgery.
During this hearing, Sanders stipulated to the allegations in the motions to revoke and the
district court found she violated her probations in all four cases. Sanders waived a
preliminary hearing on the new charges and informed the court that she would seek a
"global plea agreement" with the State.

On October 20, 2017, the district court held a dispositional hearing, which
involved eight McPherson County criminal cases filed again Sanders. At the hearing, the
parties announced they had reached a global agreement disposing of Sanders' eight cases.
As provided in the agreement, the parties recommended that the district court revoke
Sanders' probation in the first four cases and order her to serve the prison sentences
imposed in the 2013, 2014, July 2015, and November 2015 cases. In exchange for
Sanders' agreement to serve the underlying sentences, the State agreed to (1) dismiss two
2017 cases, (2) not file another case with additional forgery charges, and (3) recommend
that the district court consider the sentences in her two 2016 misdemeanor cases as time
served.
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After summarizing the agreement, the prosecutor commented that "the court has
the jurisdiction to simply remand her to serve her sentence in each of these cases. That's
the joint recommendation based on the agreement." In response to an inquiry by the
district court, Sanders stated that she understood the terms of the agreement. The district
court asked counsel for their comments regarding the disposition of the cases. The
prosecutor responded, "[T]his is an agreed disposition . . . . It is just time for the
defendant to go serve the sentences imposed previously by the court." In response to the
district court's inquiry, defense counsel stated, "Other than the fact that we have agreed to
the disposition in all of these cases the court has in front of it for disposition, we don't
have any further comments, Your Honor." The district jduge then stated, "Well, based
upon the agreement of the parties, the court is going to follow the agreement, Miss
Sanders."

The district court followed the parties' agreement, revoked Sanders' probations in
the four cases, and imposed the sentences previously ordered, for a controlling sentence
of 185 months in prison. In revoking Sanders' probations the district judge found:

"I'm doing—making that decision based upon the felonies that were committed while you
were on probation and also based upon the fact that you just are not amenable to
probation any further and the welfare of the community is—the court is just finding that
there's a public safety issue here and also that any further sanctions aren't going to be of
any assistance to you on these matters. As noted by the county attorney, there were
downward dispositional departures on these cases and the court gave you several chances
and you continued to violate the law. So, the court is going to revoke your probation on
all of these cases [and] will give you credit for time served."

The journal entries in all four cases on appeal contain the identical description of
Sanders' probation violations for each respective case. Each journal entry states that
Sanders was convicted of: (1) possession of methamphetamine with intent to distribute
in the July 2015 case; (2) possession of methamphetamine in the November 2015 case;
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(3) interference with law enforcement, driving while suspended, and driving without
liability insurance in 2016; (4) driving while suspended and driving without liability
insurance in 2016; and (5) unauthorized use of a vehicle in August 2017.

Sanders appeals.

ANALYSIS

On appeal, Sanders contends the district court abused its discretion by relying on
impermissible considerations when revoking her probations. Sanders first argues the
district court impermissibly based its decision on her convictions in the July 2015 case,
the November 2015 case, and the two 2016 misdemeanor cases. Next, she claims the
district court improperly relied on public safety reasons when it revoked her probation
because the court failed to state particularized findings.

Once a probation violation has been established, the decision to revoke probation
rests within the sound discretion of the district court. State v. Huckey, 51 Kan. App. 2d
451, 454, 348 P.3d 997 (2015). 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). Sanders bears the burden to show the district court abused its
discretion. See Gannon v. State, 305 Kan. 850, 868, 390 P.3d 461 (2017).

The district court's discretion to revoke a defendant's probation is limited by
statute. K.S.A. 2018 Supp. 22-3716(c) generally requires the district court to impose
intermediate sanctions before ordering the defendant to serve the underlying sentence.
Huckey, 51 Kan. App. 2d at 454. But if a defendant commits a new crime while on
probation, the district court has complete discretion to revoke probation without imposing
intermediate sanctions. K.S.A. 2018 Supp. 22-3716(c)(8)(A). And intermediate sanctions
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are not required if the district court "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. 2018 Supp. 22-3716(c)(9)(A).

Sanders concedes that she had no right to intermediate sanctions because she
committed a new crime—the August 2017 Texas conviction of unauthorized use of a
vehicle—while on probation in all four cases. Thus, the district court exercised its
discretion when deciding whether to revoke Sanders' probations. But Sanders contends
the district court's decision was influenced by legally improper factors, which requires a
remand for reconsideration.

Invited Error Doctrine

At the outset, Sanders' argument is inexplicable given that, as part of the parties'
dispositional agreement, Sanders and the State jointly asked the district court to impose
the previously ordered sentences. If the district court erred in revoking the various
probations and imposing the sentences, this error was clearly invited by Sanders in order
to obtain the benefits of the bargain she negotiated with the State.

Whether the doctrine of invited error applies presents a question of law over which
we exercise unlimited review. State v. Hankins, 304 Kan. 226, 230, 372 P.3d 1124
(2016). It is well settled that a litigant may not invite error and then complain of the error
on appeal. State v. Verser, 299 Kan. 776, 784, 326 P.3d 1046 (2014). Although, as set
forth below, we find no error in the district court's exercise of judicial discretion,
assuming that any error did occur, Sanders is precluded by the invited error doctrine from
complaining about it.



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District Court's Consideration of 2015 and 2016 Crimes

Sanders argues the district court erred by using the convictions in her 2015 and
2016 cases as a basis for revoking her probations. She first claims the district court
improperly considered these convictions when revoking her probations in the July 2015
and November 2015 cases because the crimes occurred before she was granted probations
in the 2015 cases.

After granting probation, a district court may not generally revoke that probation
based on a crime committed by the defendant before sentencing. State v. Gary, 282 Kan.
232, 241, 144 P.3d 634 (2006) ("Lorenzo Gary's conduct prior to sentencing did not
constitute a violation of the terms of his probation and therefore cannot be the basis for
revoking that probation under Kansas law."). Sanders committed the crimes in her 2015
and 2016 cases before she was sentenced in the July 2015 and November 2015 cases.
Thus, Sanders' 2015 and 2016 crimes may not constitute the grounds to revoke her
probations in the July 2015 and November 2015 cases.

As Sanders observes, the journal entries in the July 2015 and November 2015
cases include her 2015 and 2016 crimes in the list of violations she committed while on
her probations. The State concedes these journal entries wrongly included Sanders' 2015
and 2016 crimes as probation violations. It appears this error in the journal entries
resulted from oversight during drafting rather than improper consideration by the district
court because all four journal entries use the identical language. Moreover, at the
revocation hearing the district court stated it based its decision to revoke on the crimes
Sanders committed "while [she was] on probation."

Regardless, we find that any error did not change the district court's ultimate
decision to revoke Sanders' probations in her July 2015 and November 2015 cases. See
K.S.A. 2018 Supp. 60-261; State v. Volle, No. 115,354, 2016 WL 7429457, at *4 (Kan.
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App. 2016) (unpublished opinion) (applying the harmless error standard of K.S.A. 60-
261 in a probation revocation case). Apart from her 2015 and 2016 crimes, Sanders
committed a Texas felony in August 2017, while she was on probation in all four cases.
Sanders also violated her probations by using methamphetamine, consuming alcohol, and
failing to report to community corrections. And, as noted earlier, Sanders agreed to serve
her underlying sentences as part of a global dispositional agreement. As a result, any
error in considering Sanders' 2015 and 2016 crimes as probation violations in her 2015
cases is harmless and does not require reversal.

Next, Sanders argues that the State waived its ability to pursue probation
revocations in her 2013 and 2014 cases based on her 2015 and 2016 crimes because it
agreed to recommend probation for the 2015 and 2016 crimes.

Our court has found that the State may impliedly waive its right to pursue a
probation revocation with unreasonable delays in prosecuting a violation. State v. Curtis,
42 Kan. App. 2d 132, 143, 209 P.3d 753 (2009). The Curtis court explained that an
implied waiver may arise when a party's conduct evidences an intention to waive a right
or the conduct is inconsistent with any other intention except to waive it. 42 Kan. App. 2d
at 142. The State's failure to act without unreasonable delay divests the district court of
jurisdiction to revoke a defendant's probation. 42 Kan. App. 2d at 142.

Unlike the failure to reasonably pursue a probation revocation, the State's
agreement to recommend probation on new crimes committed while the defendant is on
probation is not inconsistent with later using those new crimes as a basis to revoke
probation. The State may believe the new crimes warrant no prison time in themselves,
but it may also conclude the defendant's probations should be revoked when the new
crimes are considered with additional probation violations. The State did not waive its
ability to use Sanders' new crimes as a basis to revoke her probations. Moreover, Sanders
provides no argument or authority suggesting why the State's recommendations for
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probation would prevent the district court from considering the 2015 and 2016 crimes
when it revoked her probations.

The district court did not commit reversible error by considering Sanders' 2015
and 2016 crimes when it revoked her probations.

Public Safety

Finally, Sanders contends the district court erred by bypassing intermediate
graduated sanctions and ordering her to serve her underlying sentences without making
the particularized findings supporting its decision required by K.S.A. 2018 Supp. 22-
3716(c)(9)(A).

To invoke the bypass provisions of K.S.A. 2018 Supp. 22-3716(c)(9)(A), a district
court must find and set forth with particularity the reasons for finding that the safety of
the public will be jeopardized or that the welfare of the offender will not be served by an
intermediate sanction. State v. Clapp, 308 Kan. 976, 988, 425 P.3d 605 (2018). But the
four journal entries reflect that the district court did not invoke the public safety bypass
provision in K.S.A. 2018 Supp. 22-3716(c)(9)(A). Instead, the district court only
bypassed intermediate sanctions under K.S.A. 2018 Supp. 22-3716(c)(8)(A) because
Sanders committed new crimes while on her probations. Regardless, since the district
court appropriately revoked Sanders' probations and ordered imprisonment because she
committed new crimes, this argument is moot. See State v. Hayes, No. 119,165, 2019 WL
1496299, at *2 (Kan. App. 2019) (unpublished opinion), petition for rev. filed May 2,
2019.

In summary, the district court lawfully revoked Sanders' probations and
reasonably followed the parties' joint recommendation for Sanders to serve her
underlying sentences. The district court appropriately bypassed intermediate sanctions
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because Sanders committed a new crime while she was on the probations, and its
decision to revoke the probations was reasonable. The probation in Sanders' 2013 case
was extended twice and two of her cases carried presumptive prison sentences. Sanders
also violated her probations by using methamphetamine, consuming alcohol, and failing
to report to community corrections.

The district court did not abuse its discretion by adhering to the dispositional
agreement negotiated by Sanders and the State. We find no error in the district court's
determination to revoke Sanders' probations and to order her to serve the underlying
sentences.

Affirmed.