State v. Timmons

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NOT DESIGNATED FOR PUBLICATION

No. 119,830

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RICHARD E. TIMMONS,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed May 10,
2019. Affirmed.

Submitted for summary disposition pursuant K.S.A. 2018 Supp. 21-6820(g) and (h).

Before ARNOLD-BURGER, C.J., MALONE and LEBEN, JJ.

PER CURIAM: Richard E. Timmons appeals the reinstatement and extension of his
probation. We granted Timmons' motion for summary disposition in lieu of briefs under
Supreme Court Rule 7.041A (2019 Kan. S. Ct. R. 47). The State responded by not
objecting to summary disposition but requesting that we affirm the district court's
decision. For the reasons stated in this opinion, we affirm the district court's judgment.

FACTUAL AND PROCEDURAL HISTORY

Timmons pled guilty to one count each of felony theft, a severity level 9 nondrug
crime, and making false information, a severity level 8 nondrug grid crime, in case No.
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13 CR 2560 (Case 1). At sentencing, the court followed the plea agreement and sentenced
Timmons to 19 months in prison but released him on probation for 18 months.

Almost a year later, a warrant was issued for Timmons arrest alleging a violation
of his probation for committing a domestic battery. As a result, following a hearing, the
court ordered Timmons to submit to a 3-day jail sanction and extended his probation for
another 18 months. Approximately 10 months later another warrant was issued for
Timmons, this time alleging that he had tested positive for illegal drugs and failed to
report to his probation officer. Timmons admitted to the violations and received a 60-day
jail sanction and a 12-month extension of his probation. It was anticipated he would enter
treatment for his drug addiction.

The final warrant was issued for his arrest approximately three months later. This
time it was alleged that he committed two new drug crimes and possessed a weapon in
case No. 17 CR 1263 (Case 2). He was ultimately convicted of those crimes by a jury.
The probation violation hearing for Case 1 and the sentencing on Case 2 were set for the
same date. During that hearing, Timmons argued that the sentence he received in Case 1
was illegal. He argued that the court erroneously counted his 2009 conviction for failure
to register as a person felony. As to the probation violation, Timmons admitted the
violation and simply noted that he had already served over 16 months in custody on Case
1. The court found that Timmons' sentence in Case 1 was not illegal. Furthermore, the
court found that due to his conviction in Case 2 his probation should be revoked and
Timmons was remanded to serve the balance of his 19-month sentence on Case 1.
Timmons appeals.

ANALYSIS

Timmons raises two issues on appeal. First, he contends that the court should have
imposed intermediate sanctions rather than revoke his probation. Second, he argues that
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his underlying sentence in Case 1 was illegal. We will begin with whether his sentence
was illegal.

Timmons' sentence in Case 1 was not illegal.

"The court may correct an illegal sentence at any time." K.S.A 2018 Supp. 22-
3504(1). An illegal sentence is: (1) a sentence imposed by a court without jurisdiction;
(2) a sentence that does not conform to the applicable statutory provision, either in
character or term of authorized punishment; or (3) a sentence that is ambiguous with
respect to the time and manner in which it is to be served. K.S.A. 2018 Supp. 22-3504(3).
"Whether a sentence is illegal is a question of law subject to de novo review." State v.
Lewis, 299 Kan. 828, 858, 326 P.3d 387 (2014) (citing State v. Taylor, 299 Kan. 5, 8, 319
P.3d 1256 [2014]).

Timmons was convicted in 2010 for failure to register under the Kansas Offender
Registration Act (KORA) in 2009. See K.S.A. 2018 Supp. 22-4901 et seq. At that time,
all violations of the KORA were considered person felonies. See K.S.A. 22-4903(a)
("Any person who is required to register as provided in the Kansas offender registration
act who violates any provisions of such act . . . is guilty of a severity level 5, person
felony."). In 2016, this law was changed to provide that the conviction would count as a
person felony or nonperson felony based on the underlying crime for which the defendant
was required to register. See L. 2016, ch. 97, § 4. Timmons' underlying conviction
requiring registration was for possession of cocaine with intent to sell, which was a
nonperson felony. So under the current law, Timmons' 2010 conviction would have been
a nonperson crime and his criminal history on this case would have been reduced from a
C to an E. See K.S.A. 2018 Supp. 21-6804. That would have reduced the aggravated
sentence in the grid box from 19 months, which Timmons received, to 15 months.

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But we do not apply the current law in determining whether Timmons' 2010
conviction was a person or a nonperson crime. We use the law that was in effect at the
time he committed his crimes in the 2013 case. See State v. Keel, 302 Kan. 560, 588, 357
P.3d 251 (2015) ("[C]lassifying a prior conviction based on the classification in effect
when the current crime was committed also treats similarly situated defendants in the
same manner." [Emphasis added.]).

So Timmons' 2009 KORA offense was properly counted as a person felony in
relation to his 2013 conviction because that is how it would have been classified in 2013.

The court did not abuse its discretion in revoking Timmons' probation and remanding
him to prison for the balance of his term.

The procedure for revoking a defendant's probation is governed by K.S.A. 2018
Supp. 22-3716. Generally, once there has been evidence of a violation of the conditions
of probation, the decision to revoke or reinstate probation is subject to the district court's
discretion. State v. Skolaut, 286 Kan. 219, 227-28, 182 P.3d 1231 (2008). An abuse of
discretion occurs when judicial action is arbitrary, fanciful, or unreasonable; is based on
an error of law; or is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d
1253 (2014). An appellate court will not disturb a discretionary decision unless no
reasonable person would have taken the view adopted by the district court. State v.
Gonzalez, 290 Kan. 747, 755, 234 P.3d 1 (2010). The party who asserts an abuse of
discretion on appeal bears the burden of establishing it. State v. Moses, 280 Kan. 939,
945, 127 P.3d 330 (2006).

In most circumstances, the district court is required to impose intermediate
sanctions before revoking an offender's probation. K.S.A. 2018 Supp. 22-3716(c)(1). See
State v. Huckey, 51 Kan. App. 2d 451, 454, 348 P.3d 997, rev. denied 302 Kan. 1015
(2015). However, there are limited statutory exceptions that permit a district court to
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revoke probation without having previously imposed the statutorily required intermediate
sanctions. One such exception is when the defendant commits a new crime while on
probation. K.S.A. 2018 Supp. 22-3716(c)(8)(A).

There is no dispute that Timmons committed new crimes while on probation. He
had done so before and the court had elected to impose intermediate sanctions. He
continued to violate probation and the court imposed more sanctions. By the time the
probation revocation hearing came before the court, Timmons had already completed 494
days of a 570-day sentence. Based on our review of the record, we find no error of fact or
law. Moreover, we find that the district court's decision was reasonable under the
circumstances presented. Although the district court gave Timmons several chances to
comply with the terms of his probation and to get the help he needed for his drug
problem, he repeatedly failed to take advantage of these. Thus, we conclude the district
court did not abuse its discretion in ordering Timmons to serve the balance of his
underlying sentence.

Affirmed.