State v. Delfelder

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NOT DESIGNATED FOR PUBLICATION

Nos. 112,348
112,349

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

PHILLIP DELFELDER,
Appellant.

MEMORANDUM OPINION


Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed November 6,
2015. Affirmed.

Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before HILL, P.J., PIERRON and ARNOLD-BURGER, JJ.

Per Curiam: Phillip M. Delfelder appeals the revocation of his probation
and the failure to impose intermediate sanctions before ordering him to serve his
underlying prison sentence.

In 2013, Delfelder pled guilty in two separate cases. In 13CR2264, he pled guilty
to burglary, criminal damage to property, and theft. In 13CR3141, he pled guilty to
forgery. He was sentenced on January 15, 2014. In 13CR2264, the district court gave
Delfelder an underlying sentence of 23 months' imprisonment but granted probation for
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24 months. In 13CR3141, the district court sentenced Delfelder to an underlying sentence
of 15 months' imprisonment, to run consecutive to 13CR2264 but again granted 24
months' probation. The court ordered Delfelder to spend 60 days in the county jail as a
condition of his probation.

Prior to the district court's imposition of sentence, the parties discussed Delfelder's
past drug use and his bold claim that he would be clean if the court ordered a drug test on
the spot. The court called Delfelder's bluff and ordered an immediate urinalysis. Delfelder
tested positive for having methamphetamine in his system. When the district court gave
him the opportunity for allocution, he used the occasion to continue to claim he was drug
free and that someone must have put something in his drink. In light of the evidence, the
district judge stressed his expectations for Delfelder while on probation:

"[THE COURT:] I want also to put you on notice, Mr. Delfelder, that the
expectation for probation is that there'll be no other violations. In other words, it's zero
tolerance for any violations with no exceptions being granted. And what that simply
means is that at the end of 60 days, you're going to be released on probation, and the
probationary term is going to be for two years. If there's any violation during that two-
year period, then there's a 99.9 percent probability that you'll go to prison. Any question
about that?
"THE DEFENDANT: No, sir.
"THE COURT: And let me say with as much emphasis as I can, Mr. Delfelder,
that I'm not imposing that expectation of zero tolerance with any intent to be threatening,
or intimidating, or any other bad motivation. Rather, it's intended to just give you notice
of the fact that the expectation for you is pretty darn high. People live down their
probation conditions every day. There's no reason you can't do likewise.
"Part of the reason for imposing that expectation also is to give you an incentive
to comply. Every time you come across somebody that is drinking, or doping, or
whatever and you're encouraged or persuaded by them to engage in that activity, just
keep the thought in mind, if you do, there's a good chance you're going to go to prison. So
just keep that at the forefront of your thinking at all times. If you do that, there should be
no difficulty."
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Despite the court's warning, Delfelder violated the conditions of his probation.

On June 5, 2014, the State filed a warrant alleging Delfelder had violated his
probation in seven ways: (1) failing to pay court costs; (2) testing positive for
methamphetamines in early March 2014; (3) testing positive for methamphetamines in
late May 2014; (4) committing the offenses of driving while suspended, failing to signal,
tag violation, and no proof of insurance; (5) failing to report in April 2014; (6) failing to
enter and complete drug and alcohol treatment; and (7) failing to perform community
service work. At the revocation hearing, Delfelder admitted to the probation violations
and waived his right to an evidentiary hearing. In a somewhat lengthy diatribe, the district
court questioned Delfelder concerning if he had used drugs in front of his children and
explained how most prisoners have drug and/or alcohol problems. The court revoked
Delfelder's probation and ordered him to serve his underlying sentence. The judge's
verbalized rationale for revoking Delfelder's probation was limited to the following:

"Well, Mr. Delfelder, you've had eight DUI's. You've had more than ample
opportunity to take care of your own business and take care of yourself. And, when I say
zero tolerance, no exceptions, that's exactly what I mean.
"I don't see any valid circumstances in your case that would allow for an
exception to be made. If I make an exception for you, the first thing that happens is, you
go back over to the county jail and you tell all those guys, I went to Burgess, and he had
me on zero tolerance, no exceptions, he made an exception. So the next guy that comes
over, or the next woman comes over, Well, you made an exception for that guy, what
about me? Pretty soon the exception follows the rule, and then there is no reason to even
have a rule."

However, the district court's journal entry indicated that Delfelder's probation was
revoked pursuant to K.S.A. 2013 Supp. 22-3716(c)(8) or (c)(9) because Delfelder's
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welfare would not be served by intermediate sanctions and Delfelder had committed a
new crime.

On appeal, Delfelder argues the district court's zero tolerance policy was an abuse
of discretion and the court should have imposed the intermediate sanctions under K.S.A.
2014 Supp. 22-3716.

The intermediate sanction provisions now claimed by Delfelder are retroactive and
applicable to him. K.S.A. 2014 Supp. 22-3716(c)(12) expressly provides: "The violation
sanctions provided in this subsection shall apply to any violation of conditions of release
or assignment or a nonprison sanction occurring on and after July 1, 2013, regardless of
when the offender was sentenced for the original crime or committed the original crime
for which sentenced." See State v. Kurtz, 51 Kan. App. 2d 50, 56, 340 P.3d 509 (2014)
("The legislature has therefore clarified that the date that controls the law that applies to
the imposition of sanctions for violating probation is the law that existed when a
defendant violated probation, not the law that existed when the defendant committed the
underlying crime as this court held in [State v.] Dreier [29 Kan. App. 2d 958, 34 P. 3d
480 (2001)], nor the law in effect when the probation hearing occurred."), rev. denied 302
Kan. ___ (September 23, 2015). The events of Delfelder's probation violations occurred
in 2014. Consequently, the applicability date of July 1, 2013, for imposing intermediate
sanctions has been met.

However, this issue was not raised at the probation revocation hearing. Delfelder
argues for the first time on appeal that the district court erred by ordering him to serve his
underlying sentence without first imposing an intermediate sanction under K.S.A. 2014
Supp. 22-3716(c) and in essence sticking with the court's zero tolerance position. Neither
party mentioned the graduated sanction framework at the revocation hearing in district
court.

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As a general rule, issues not raised before the trial court cannot be raised on
appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). There are several
exceptions to this general rule, including the following: (1) The newly asserted theory
involves only a question of law arising on proved or admitted facts and is finally
determinative of the case; (2) consideration of the theory is necessary to serve the ends of
justice or to prevent the denial of fundamental rights; and (3) the judgment of the trial
court may be upheld on appeal despite its reliance on the wrong ground or having
assigned a wrong reason for its decision. State v. Phillips, 299 Kan. 479, 493, 325 P.3d
1095 (2014).

Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 41) requires an appellant
to explain why an issue that was not raised below should be considered for the first time
on appeal. Litigants who fail to comply with this rule risk a ruling that the issue is
improperly briefed and will be deemed waived or abandoned. State v. Williams, 298 Kan.
1075, 1085, 319 P.3d 528 (2014) (cautioning future litigants to comply with rule).

In State v. Klima, No. 110,660, 2014 WL 3843473, at *2-3 (Kan. App. 2014)
(unpublished opinion), rev. denied 302 Kan. ___ (August 10, 2015), the court found that
a challenge to a district court's purported failure to implement the graduated sanction
framework in K.S.A. 2013 Supp. 22-3716(c) was not properly raised on appeal because it
was not first presented to the district court. In that case, Klima did not acknowledge his
failure to raise the argument below, nor did he assert any of the exceptions to the general
rule preventing him from raising the issue for the first time on appeal. In light of the
warning in Williams, 298 Kan. at 1085-86, the court declined to address the issue on the
merits. Klima, 2014 WL 3843473, at *2-3.

Here, Delfelder does not acknowledge that this court generally will not review
issues raised for the first time on appeal or state whether any of the exceptions to that rule
apply in his case.
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Since Delfelder did not raise the key issues at the trial level, we will not review
those issues. With this decision it is also unnecessary to review a number of other issues.

Affirmed.