State v. Fairchild

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NOT DESIGNATED FOR PUBLICATION

No. 112,404

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RALPH DOUGLAS C. FAIRCHILD,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; ROBERT P. BURNS, judge. Opinion filed April 15, 2016.
Affirmed.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Mollie R. Hill, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before BUSER, P.J., LEBEN and BRUNS, JJ.

BUSER, J.: Ralph Douglas C. Fairchild appeals his sentence and revocation of
probation in this criminal case. Finding no error by the district court, we affirm the
sentence and revocation of Fairchild's probation.

FACTUAL AND PROCEDURAL BACKGROUND

On July 8, 2011, Fairchild was found guilty upon his plea of no contest to
aggravated robbery. A presentence investigation (PSI) report showed Fairchild had a
criminal history score of B. That score was based, in part, on a 1985 conviction for
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assault with a deadly weapon in Washington, D.C., which the PSI classified as a person
felony. At sentencing, on September 2, 2011, Fairchild did not challenge his criminal
history. Under terms of a plea agreement, Fairchild was sentenced to 216 months'
imprisonment and granted a dispositional departure to 36 months' probation.

Less than 1 year later, on August 16, 2012, the State moved to revoke Fairchild's
probation. The State alleged, in part, that Fairchild did not report for nearly a year, failed
to complete a substance abuse evaluation, tested positive for opiates, failed to resolve
outstanding warrants, failed to pay court costs, and failed to avoid violations of the law.
At the probation revocation hearing held on January 30, 2013, Fairchild stipulated to
these violations, the district court revoked his probation, imposed 60 days of "shock
time," and set the matter over for a dispositional hearing on whether probation would be
reinstated. The district court warned Fairchild that, in the meantime, if he did not comply
with the prior conditions of his probation, "we're just going to order you to serve the
balance of your sentence." The district court concluded: "You're down to your absolute
final chance."

Two days after Fairchild was released from the jail, he reported under the
influence of alcohol. Testing showed an alcohol level of .191. The district court ordered
Fairchild to serve his underlying prison sentence. Fairchild appeals.

MOTION TO CORRECT ILLEGAL SENTENCE

After filing his appeal, but before docketing it with our court, Fairchild filed a pro
se motion to correct illegal sentence in the district court. The district court declined to
rule on the motion. Fairchild now renews his motion to correct illegal sentence in our
court, and we may consider it. See K.S.A. 22-3504; State v. Neal, 292 Kan. 625, 631, 258
P.3d 365 (2011). Our appellate review is unlimited. See State v. Taylor, 299 Kan. 5, 8,
319 P.3d 1256 (2014).
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Fairchild contends the district court erred by counting his 1985 conviction in
Washington, D.C. as a person felony. In support of his contention, Fairchild relies on two
decisions of our Supreme Court which that court has since overruled. See State v.
Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by Supreme Court order
September 19, 2014, overruled by State v. Keel, 302 Kan. 560, Syl. ¶ 9, 357 P.3d 251
(2015); State v. Williams, 291 Kan. 554, 244 P.3d 667 (2010), overruled by State v. Keel,
302 Kan. 560, Syl. ¶ 9, 357 P.3d 251 (2015). Because Murdock and Williams have been
overruled, they do not support Fairchild's legal argument. See State v. Belone, 51 Kan.
App. 2d 179, 211, 343 P.3d 128, rev. denied 302 Kan. __ (2015) (Court of Appeals is
bound by Kansas Supreme Court precedent).

Fairchild also argues that legislation enacted to overturn Murdock and Williams
violates the Ex Post Facto Clause of the United States Constitution. Our Supreme Court's
decision in Keel, however, renders that point moot. Since Murdock and Williams are no
longer good law in Kansas, we need not consider Fairchild's complaint regarding this
legislation. See State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012) (appellate
courts generally do not decide moot questions).

We conclude the district court did not err in classifying Fairchild's 1985 conviction
in Washington, D.C. by "comparing the criminal statute under which the prior offense
arose to the comparable post-[Kansas Sentencing Guidelines Act] criminal statute." Keel,
302 Kan. 560, Syl. ¶ 8. Fairchild raises no other challenge to the classification or to his
criminal history score generally. As a result, the sentence imposed by the district court
was not illegal.





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REVOCATION OF PROBATION

For his second issue on appeal, Fairchild does not dispute that he violated several
conditions of his probation. Instead, he contends the district court abused its discretion by
revoking probation and imposing the underlying sentence.

Once a violation of probation has been established, the district court must consider
whether the violation warrants revocation of probation. State v. Skolaut, 286 Kan. 219,
227, 182 P.3d 1231 (2008). The disposition of a case upon a showing of a probation
violation lies within the broad discretion of the district court. Appellate review of the
district court's disposition of the probation revocation hearing is, therefore, limited to
reviewing the court's decision for an abuse of discretion. State v. Gumfory, 281 Kan.
1168, 1170, 135 P.3d 1191 (2006). A judicial action constitutes an abuse of discretion if
the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3)
is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).

Fairchild's argument on abuse of discretion is conclusory and omits citation to
supporting authority. Having considered the entire record, however, we do not see an
abuse of discretion. Fairchild was convicted of a serious felony offense that, except for
being granted a dispositional departure to probation, would have resulted in presumptive
imprisonment. As detailed in the Factual and Procedural Background section of this
opinion, Fairchild's violations of his probation were serious and numerous. Even the
imposition of shock jail time and the district court's clearly stated warning did not alter
Fairchild's behavior. On this record, we are convinced there was no abuse of discretion
by the district court in revoking his probation and ordering incarceration.

Affirmed.