State v. Edwards

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NOT DESIGNATED FOR PUBLICATION

No. 114,443

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.


JAMACA EDWARDS,
Appellant.

MEMORANDUM OPINION

Appeal from Crawford District Court; LORI A. FLEMING, judge. Opinion filed April 8, 2016.
Affirmed in part and dismissed in part.

Submitted for summary disposition pursuant to K.S.A. 2015 Supp. 21-6820(g) and (h).

Before MALONE, C.J., MCANANY and POWELL, JJ.

Per Curiam: Jamaca Edwards claims the district court abused its discretion in
revoking her probation in her 2014 case and in imposing a prison sentence in her 2015
case. She also argues that the district court violated her due process rights by using a
prior conviction to calculate her criminal history without a jury finding of that fact.

Pursuant to a plea agreement in her 2014 case, Edwards pled no contest to two
counts of felony theft, and the State dismissed the remaining counts. In September 2014,
the district court accepted her pleas and sentenced her to serve consecutive 7-month
prison terms for each conviction but suspended the sentences and granted probation for
12 months.
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In January 2015, the State moved to revoke Edwards' probation for violations of
the conditions of her probation, including the commission of new criminal offenses. In
that new 2015 case, the State charged Edwards with criminal trespass and two counts of
felony theft. Pursuant to another plea agreement, Edwards pled no contest to one count of
felony theft and stipulated to having violated her probation in her 2014 case. In exchange,
the State (1) dismissed the remaining counts in the 2015 case, (2) agreed to recommend
the standard penalty within the applicable gridbox, and (3) agreed to recommend
probation in both the 2014 and 2015 cases on the condition that Edwards be supervised
by community corrections and undergo inpatient drug treatment. The court accepted
Edwards' plea and her stipulation.

In June 2015, the district court revoked Edwards' probation in her 2014 case and
ordered her to serve the consecutive sentences originally imposed. In her 2015 case, the
court imposed a 9-month prison sentence, to be served consecutive to the sentences
imposed her 2014 case.

Edwards appeals. Her attorney moved for summary disposition of this appeal
without briefing under Kansas Supreme Court Rule 7.041A (2015 Kan. Ct. R. Annot.
67). The State filed a response generally agreeing that summary disposition of the appeal
was appropriate. Accordingly, we will consider Edwards' appeal under Kansas Supreme
Court Rule 7.041A.

Edwards contends that the district court abused its discretion in revoking probation
in her 2014 case. Judicial discretion is abused when the court exercises its authority
within the wrong legal framework; relies on a factual basis that is unsupported by the
appellate record; or makes an otherwise arbitrary, fanciful, or unreasonable decision that
any reasonable person in the position of the court would have rejected. See State v.
Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014); State v. Gumfory, 281 Kan. 1168, 1170,
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135 P.3d 1191 (2006). Edwards bears the burden of demonstrating an abuse of discretion
on appeal. See State v. Wells, 289 Kan. 1219, 1227, 221 P.3d 561 (2009).

Edwards fails to demonstrate any such abuse under the circumstances presented in
this case. She was charged with multiple counts of theft in her 2014 case. She obtained
the benefit of a favorable plea agreement dismissing the majority of the counts and was
given probation. Approximately a month later, Edwards violated the conditions of her
probation by failing to report to her probation officer on two occasions. The probation
officer ordered Edwards to serve a sanction of 3 days in jail in lieu of filing a motion to
revoke her probation. Edwards failed to appear at the jail.

Edwards did not obtain employment during the 4 months prior to the State's
motion to revoke her probation and had not complied with case plan requirements in her
child-in-need-of-care case. She either provided an invalid address to her probation officer
or moved without informing the officer because mail from the officer was returned. In 4
months, Edwards had performed only 4 1/2 hours of a 50-hour requirement for
community service.

Three days before Edwards was supposed to report for her jail sanction, she
committed thefts at two different locations in Pittsburg. Because Edwards committed new
offenses while on probation, the district court was not required to consider intermediate
sanctions. See K.S.A. 2015 Supp. 22-3716(c)(1)(E)(8).

In revoking Edwards' probation, the district court acknowledged that Edwards had
recently completed inpatient treatment for her drug addiction. But the court noted that the
same inpatient treatment would have been available to Edwards during her probation in
her 14 earlier convictions. Given Edwards' complete lack of success on this probation, the
district court concluded that revocation was warranted. Under these circumstances, we
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cannot conclude that no reasonable judge considering the probation disposition in this
matter would have ruled similarly. The district court's decision to revoke Edwards'
probation and impose the underlying prison sentence was not an abuse of judicial
discretion.

Next, Edwards challenges the district court's imposition of a prison sanction in her
2015 case. But we lack jurisdiction to consider any such challenge. The district court
imposed the standard presumptive sentence in Edwards' 2015 case. The applicable
gridbox calls for presumptive probation. See K.S.A. 2015 Supp. 21-6804(a). But, under
K.S.A. 2015 Supp. 21-6604(f)(1), a district court may impose a prison sentence for the
commission of a new felony while a defendant is on probation for a felony even if the
sentencing guidelines indicates the new felony falls within the presumptive probation
range. The imposition of prison in such cases is not a departure. See K.S.A. 2015 Supp.
21-6604(f)(1). A sentence that does not constitute a departure is legally considered a
presumptive sentence. State v. Dean, 273 Kan. 929, 935-36, 46 P.3d 1130 (2002). We
lack jurisdiction to review any sentence within the presumptive sentencing range for the
offense. See K.S.A. 2015 Supp. 21-6820(c)(1); State v. Huerta, 291 Kan. 831, 837, 247
P.3d 1043 (2011).

Finally, Edwards claims the district court violated her due process rights by using
her criminal history to calculate the appropriate prison term under the guidelines without
proving her criminal history to a jury, a practice contrary to the holding in Apprendi v.
New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

The Apprendi argument Edwards raises was rejected by the Kansas Supreme
Court in State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). We must apply Kansas
Supreme Court precedent absent some indication that the court is departing from its
precedent. State v. Belone, 51 Kan. App. 2d 179, 211, 343 P.3d 128, rev. denied 302 Kan.
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__ (September 14, 2015). The court has consistently upheld its reasoning in Ivory. See,
e.g., State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013); State v. Brown, 295 Kan.
181, 216, 284 P.3d 977 (2012). Consequently, this argument provides no basis for relief.

Affirmed in part and dismissed in part.