State v. Villela

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NOT DESIGNATED FOR PUBLICATION

No. 119,549

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CHRISTOPHER VILLELA,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed January 10, 2020. Affirmed.

Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.

Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before GARDNER, P.J., BUSER, J., and LAHEY, S.J.

PER CURIAM: Christopher Villela appeals his sentence and the district court's
order revoking his probation. He raises two issues. Villela first contends the district court
abused its discretion by revoking his probation and ordering him to serve his underlying
prison sentence because it failed to consider his need for drug treatment. Next, Villela
argues the district court erred by classifying his 1996 juvenile adjudication for burglary in
Texas as a person felony when determining his criminal history score. Finding no error,
we affirm the district court.

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FACTUAL AND PROCEDURAL BACKGROUND

Villela pled guilty to possession of marijuana with intent to distribute, possession
of methamphetamine, possession of drug paraphernalia with intent to use for distribution,
interference with a law enforcement officer, and battery of a law enforcement officer. His
plea agreement recommended aggravated but concurrent sentences, and the State agreed
not to oppose a dispositional departure to probation. The presentence investigation (PSI)
report calculated Villela's criminal history score as B, based in part on classifying a 1996
Texas juvenile adjudication for burglary of a habitation as a person felony. Neither party
objected to the criminal history score. The district court sentenced Villela to a controlling
sentence of 47 months in prison but granted a dispositional departure and placed Villela
on probation for 18 months.

State's First Motion to Revoke

Less than a month after sentencing, the State filed its first motion to revoke
Villela's probation. In April 2017, Villela admitted he violated his probation by: (1)
failing to report to community corrections; (2) failing to live in his reported place of
residence; (3) using cocaine; and (4) committing five new crimes—theft of lost or mislaid
property, possession of drug paraphernalia, possession of stolen property, two counts of
driving while suspended, and driving without insurance.

At the revocation hearing, the district court reinstated and extended Villela's
probation, ordered he serve a 30-day jail sanction, and ordered he obtain a drug and
alcohol evaluation.

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State's Second Motion to Revoke

In August 2017, the State filed a second motion to revoke probation. Villela again
admitted violating his probation. The admitted violations included more new crimes: (1)
fleeing or eluding; (2) theft of property or services; (3) possession of stolen property; (4)
driving while suspended; (5) four counts of disobeying traffic controls; (6) a vehicle
registration violation; (7) a vehicle identification number violation; (8) two counts of
failing to signal; and (9) interference with a law enforcement officer. Villela also
admitted he failed to report to community corrections on three occasions; failed to report
to treatment as directed; and tested positive for methamphetamine, cocaine, and
benzodiazepine.

Villela's probation was again reinstated. He was ordered to serve a 180-day
sanction, and the district court recommended he attend inpatient treatment.

State's Third Motion to Revoke

The State filed a third motion to revoke Villela's probation in January 2018,
alleging that Villela failed to obtain a drug and alcohol assessment as directed and
repeatedly failed to report to community corrections. Villela stipulated to these
allegations.

At the dispositional hearing, Villela argued that the district court should allow him
to remain on probation and obtain inpatient treatment as recommended by a mental health
and substance abuse evaluation. The State recommended that Villela's probation be
revoked because he failed to perform the basic requirements of his probation. After
listening to the arguments of the parties, the district court revoked Villela's probation and
imposed the underlying 47-month prison sentence.

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Villela's notice of appeal was filed one day out of time. Our court issued a show
cause order and ultimately remanded the case to the district court for an evidentiary
hearing to determine whether Villela should be allowed an out-of-time appeal under State
v. Ortiz, 230 Kan. 733, 640 P.3d 1255 (1982). Following the Ortiz hearing, the district
court ruled that Villela established grounds to file the untimely appeal. The State does not
contest the district court's Ortiz finding and, therefore, has abandoned any argument
challenging the finding. See State v. Arnett, 307 Kan. 648, 650, 413 P.3d 787 (2018)
(noting issue not briefed deemed waived and abandoned). As a result, we consider the
merits of Villela's arguments on appeal.

I. DID THE DISTRICT COURT ERR IN REVOKING VILLELA'S PROBATION?

Villela first contends the district court abused its discretion by revoking his
probation by failing to consider his need for drug treatment. Villela argues that no
reasonable person would have revoked his probation because allowing him to continue
probation and receive inpatient treatment would have been more appropriate given his
individual circumstances. We find this argument to be without merit.

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, rev. denied 302 Kan. 1015 (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). Villela 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
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intermediate sanctions before ordering the defendant to serve the underlying prison
sentence. Huckey, 51 Kan. App. 2d at 454. But when a defendant's probation is
"originally granted as the result of a dispositional departure," as it was here, the district
court has complete discretion to revoke probation without imposing intermediate
sanctions. See K.S.A. 2018 Supp. 22-3716(c)(9)(B).

Although not required to do so, the district court imposed intermediate sanctions
rather than revoke Villela's probation following the first two revocation hearings. In spite
of the opportunities given to him, Villela violated his probation for a third time. In fact,
the day following his release from the second intermediate sanction, Villela failed to
report to community corrections. And despite Villela's requested opportunities for drug
treatment, he failed to timely obtain a drug and alcohol assessment as directed and failed
to attend his required treatment.

"Probation from serving a sentence is an act of grace by the sentencing judge and,
unless otherwise required by law, is granted as a privilege and not as a matter of right."
State v. Lumley, 267 Kan. 4, Syl. ¶ 1, 977 P.2d 914 (1999). In revoking Villela's
probation, the district court stated, "You know . . . Mr. Villela, you've kind of used up
your chances. And that doesn't mean you won't have an opportunity to create a life drug
free. I mean, you will, but I think you should serve this sentence." Contrary to Villela's
argument, the comments by the district court clearly reflect the trial court's continuing
awareness, and consideration, of Villela's drug issues.

Furthermore, in addition to granting the original departure motion, the district
court twice declined to revoke Mr. Villela's probation and allowed him the opportunity to
remain in the community and address his drug issues. The district court ordered Villela to
obtain a drug and alcohol evaluation and recommended inpatient treatment. Yet Villela
demonstrated an unwillingness or inability to comply with the conditions of his
probation. While Villela may benefit from inpatient treatment, as he argues in his brief,
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we find the district court did not abuse its discretion by revoking Villela's probation and
ordering him to serve his underlying sentence.

II. DID THE DISTRICT COURT ERR IN CALCULATING VILLELA'S CRIMINAL HISTORY
SCORE?

Villela contends the district court erred when calculating his criminal history score
at sentencing by scoring his juvenile adjudication for a Texas burglary as a person felony
rather than a nonperson felony. He therefore seeks to be resentenced under a lower
criminal history score.

Whether a prior conviction should be classified as a person or nonperson offense
involves the interpretation of the Kansas Sentencing Guidelines Act (KSGA), K.S.A.
2018 Supp. 21-6801 et seq. "Interpretation of a statute is a question of law over which
appellate courts have unlimited review." State v. Keel, 302 Kan. 560, 571, 357 P.3d 251
(2015), cert. denied 136 S. Ct. 865 (2016).

Under the KSGA, criminal sentences are based on two controlling factors: the
defendant's criminal history and the severity level of the crime committed. K.S.A. 2018
Supp. 21-6804(c). A defendant's prior out-of-state convictions are counted when
calculating criminal history score. K.S.A. 2018 Supp. 21-6811(e)(1). Kansas classifies an
out-of-state conviction as a person or nonperson offense by referring to the comparable
offense under the Kansas Criminal Code. If the Code does not have a comparable
offense, the out-of-state conviction is classified as a nonperson crime. K.S.A. 2018 Supp.
21-6811(e)(3).

The KSGA does not define what constitutes a comparable offense. But beginning
with State v. Vandervort, 276 Kan. 164, 179, 72 P.3d 925 (2003), our Supreme Court set
forth the test to be applied in determining whether an out-of-state conviction is
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comparable to an offense under the Kansas Criminal Code: the offenses "need only be
comparable, not identical," meaning the Kansas statute that is the "closest approximation"
to the out-of-state offense "constitutes the comparable offense." For more than a decade
following Vandervort, the court continued to define a comparable offense using the
closest approximation approach, noting the crimes need only be comparable and not
identical. See, e.g., State v. Murdock, 299 Kan. 312, 314, 323 P.3d 846 (2014) (Murdock
I), overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015).

However, in 2018 our Supreme Court altered the analysis for determining
comparability. Now, for a Kansas crime to be comparable to an out-of-state offense, "the
elements of the out-of-state crime cannot be broader than the elements of the Kansas
crime. In other words, the elements of the out-of-state crime must be identical to, or
narrower than, the elements of the Kansas crime to which it is being referenced." State v.
Wetrich, 307 Kan. 552, 562, 412 P.3d 984 (2018).

Relying on Wetrich, Villela initially argued, and the State agreed, that under the
identical-or-narrower test in Wetrich, his Texas burglary was not comparable to a Kansas
burglary and therefore it should not have been scored as a person felony. Based upon
subsequent Kansas Supreme Court decisions, however, we directed the parties to submit
supplemental briefs on the comparability issue. We now briefly review those subsequent
Kansas Supreme Court cases and analyze their impact on Villela's appeal.

In State v. Murdock, 309 Kan. 585, 591, 439 P.3d 307 (2019) (Murdock II), the
Kansas Supreme Court clarified:

"The legality of a sentence is fixed at a discrete moment in time—the moment the
sentence was pronounced. At that moment, a pronounced sentence is either legal or
illegal according to then-existing law. Therefore, for purposes of a motion to correct an
illegal sentence, neither party can avail itself of subsequent changes in the law."
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Following Murdock II, our Supreme Court explicitly held: "Wetrich was a change
in the law." State v. Weber, 309 Kan. 1203, 1209, 442 P.3d 1044 (2019). And, although a
party obtains the benefit of a change in the law during a direct appeal, a party collaterally
attacking a sentence is "stuck with the law in effect at the time the sentence was
pronounced." Murdock, 309 Kan. at 591-92.

Notwithstanding Murdock II and Weber, Villela advances the following arguments
in support of his contention we should still apply Wetrich to his case: (1) Weber was
wrongly decided and the rule announced in Wetrich was not a change in the law; (2) the
"identical-or-narrower" test in Wetrich is constitutionally mandated, and (3) the
sentencing court engaged in constitutionally improper judicial fact-finding in violation of
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000),
and State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015).

We find Villela's arguments to be addressed and rejected by our Supreme Court in
State v. Bryant, No. 118,848, 2019 WL 6334364, at *1-2 (Kan. 2019). In challenging the
classification of his Missouri burglaries as person crimes, Bryant argued that his sentence
was illegal under Wetrich and, like Villela here, raised constitutional challenges to his
sentence. We find Bryant's analysis applicable to all of Villela's illegal sentence
arguments.

First, the Bryant court, after reviewing Murdock II, noted the following 2019
amendments to K.S.A. 22-3504:

"[O]ur Legislature echoed the Murdock II holding by amending the illegal sentence
statute, K.S.A. 2018 Supp. 22-3504(3), to read:

"'(1) "Illegal sentence" means a sentence: Imposed by a court without
jurisdiction; that does not conform to the applicable statutory provision, either in
character or punishment; or that is ambiguous with respect to the time and manner in
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which it is to be served at the time it is pronounced. A sentence is not an "illegal
sentence" because of a change in the law that occurs after the sentence is pronounced.

"'(2) "Change in the law" means a statutory change or an opinion by an appellate
court of the state of Kansas, unless the opinion is issued while the sentence is pending an
appeal from the judgment of conviction.' L. 2019, ch. 59, § 15.

"Our Legislature stated that these amendments were 'procedural in nature' and
'shall be construed and applied retroactively.' L. 2019, ch. 59, § 15. The amendment went
into effect on May 23, 2019." Bryant, 2019 WL 6334364, at *2.

Then, in rejecting Bryant's claim his sentence was illegal in light of Wetrich, our
Supreme Court stated:

"This court made the next relevant move, deciding in State v. Weber, 309 Kan.
1203, 1209, 442 P.3d 1044 (2019), that 'Wetrich was a change in the law as contemplated
by Murdock II' and therefore inapplicable to sentences finalized before Wetrich was
decided. Weber, 309 Kan. at 1209. The Weber holding dooms Bryant's Wetrich
argument." Bryant, 2019 WL 6334364, at *2.

Villela's Wetrich argument is similarly doomed. Because he was sentenced before
Wetrich and did not directly appeal his sentence when it was imposed, Villela does not
obtain the benefit of the change in law under Wetrich.

At the time Villela was sentenced, the law for determining comparability was
based on Vandervort's "closest approximation" test and not Wetrich's "identical-or-
narrower" analysis. We note that Villela's comparability challenge is based solely on
Wetrich—he does not argue that his sentence is illegal under the Vandervort test. See
State v. Sprague, 303 Kan. 418, 425, 362 P.3d 828 (2015) ("When a litigant fails to
adequately brief an issue it is deemed abandoned."). We nonetheless note that applying
Vandervort, our review of the applicable Texas and Kansas burglary statutes reveals that
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the closest approximation to a Texas burglary of a habitation is a Kansas burglary of a
dwelling because a "habitation" under Texas law "clearly fits within the Kansas definition
of 'dwelling.'" State v. Mullens, 51 Kan. App. 2d 1114, 1117, 360 P.3d 1107 (2015).

Finally, our Supreme Court in Bryant further directs the outcome of Villela's
constitutional challenges to his sentence:

"Bryant also argues that his sentence is unconstitutional under Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Descamps v. United
States, 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013); and Mathis v. United
States, 579 U.S. __, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016). He asserts the district
judge unconstitutionally engaged in fact-finding when he designated Bryant's 1981
Missouri second-degree burglaries as person felonies.

"This court has often reiterated that 'the definition of an illegal sentence does not
include a claim that the sentence violates a constitutional provision.' State v. Dickey, 305
Kan. 217, 220, 380 P.3d 230 (2016) (Dickey II) (quoting State v. Moncla, 301 Kan. 549,
553-54, 343 P.3d 1161 [2015]). Under this rule, Bryant cannot use a motion to correct an
illegal sentence to argue that his sentence is unconstitutional. Dickey II, 305 Kan. at 220."
Bryant, 2019 WL 6334364, at *2.

Villela's constitutional claims cannot be raised to challenge his sentence here as
illegal because, as in Bryant, the definition of an illegal sentence does not include a claim
that the sentence violates a constitutional provision.

We find no error by the district court in classifying Villela's Texas burglary
adjudication as a person felony when calculating his criminal history score.

Affirmed.