State v. Lamb

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NOT DESIGNATED FOR PUBLICATION

No. 112,717

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RONALD L. LAMB,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed October 30,
2015. Affirmed.

Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.

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

Before LEBEN, P.J., GREEN, J., and JEFFREY GOERING, District Judge, assigned.

Per Curiam: Ronald L. Lamb appeals the trial court's summary denial of his
motion requesting more jail-time credit. On appeal, Lamb argues that upon the revocation
of his probation, he was entitled to more jail-time credit because while he was on
probation: (1) he had been assigned to a community correctional residential services
program and was therefore entitled to jail-time credit under the plain language of K.S.A.
2014 Supp. 21-6615(b); and (2) he had spent 43 days in an inpatient drug treatment
program. Finding no reversible error, we affirm.

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In accordance with a plea agreement, Lamb pled guilty to the following:
conspiracy to manufacture methamphetamine, possession of anhydrous ammonia with
intent to manufacture a controlled substance, possession of lithium metal with intent to
manufacture a controlled substance, possession of drug paraphernalia with intent to
manufacture a controlled substance, possession of methamphetamine, possession of drug
paraphernalia with intent to package a controlled substance for sale, two counts of
contributing to a child's misconduct, aggravated battery, fleeing and eluding, obstruction
of official duty, and criminal trespass. At sentencing, on June 5, 2009, the trial court
granted Lamb's request for a dispositional departure to probation. The trial court
sentenced Lamb to 36 months' probation with community corrections with an underlying
controlling sentence of 261 months' imprisonment.

Lamb's probation order required Lamb to comply with several conditions
concerning his residence. For instance, Lamb had to be at his reported residence by his
curfew. Lamb had to reside at his place of residence with only the people his supervising
officer had approved. Lamb had to get permission to change his residence or allow new
people into his residence. Moreover, Lamb had to "[a]llow Community Corrections
personnel to visit [his] residence" and search his residence without a warrant.

On October 11, 2011, the trial court revoked Lamb's probation. The trial court
modified Lamb's underlying sentence to 198 months' imprisonment. The journal entry of
the probation revocation hearing states that Lamb was entitled to 66 days of jail-time
credit for the time he spent in jail between November 12, 2009, and December 21, 2009,
and for the time he spent in jail between September 14, 2011, and October 11, 2011.

Lamb appealed the revocation of his probation to this court in State v. Lamb, No.
107,555, 2012 WL 5373392 (Kan. App. 2012) (unpublished opinion), rev. denied 297
Kan. 1252 (2013). This court affirmed the revocation of Lamb's probation. Lamb, 2012
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WL 5373392, at *2. Lamb did not challenge the trial court's jail-time credit determination
in this appeal.

Then, on May 21, 2014, Lamb filed a pro se "Motion for Time Served on
Community Corrections." Under K.S.A. 2014 Supp. 21-6615(b), a person on probation
who has been assigned to a "community correctional residential services program" is
entitled to jail-time credit for time spent on assignment upon the revocation of his or her
probation. In his motion, Lamb argued that he had been assigned to a community
correctional residential services program because the terms of his probation included
conditions concerning his residence. Based on this argument, Lamb asserted that he was
entitled to jail-time credit for each day he spent on probation with community
corrections.

The trial court denied Lamb's motion, stating: "The defendant incorrectly
interprets the applicable Kansas Statutes."

On appeal, Lamb argues that the trial court erred when it summarily denied his
motion for two reasons. First, Lamb argues that he had been assigned to a community
correctional residential services program while on probation and was therefore entitled to
jail time credit under the plain language of K.S.A. 2014 Supp. 21-6615(b). We note that
K.S.A. 21-4614a, which Lamb cites to in his motion and brief, was the relevant jail-time
credit statute in effect when the trial court originally sentenced Lamb, but this statute has
since been recodified without any substantive changes to K.S.A. 2014 Supp. 21-6615(b).
Second, Lamb argues that he is entitled to jail-time credit for the 43 days he spent in an
inpatient drug treatment program while on probation.

A defendant's right to jail-time credit is statutory. Because review of jail-time
credit determinations involve statutory interpretation, this court has unlimited review
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over Lamb's arguments on appeal. See State v. Hopkins, 295 Kan. 579, 581, 285 P.3d
1021 (2012).

In his first argument, Lamb asserts that he is entitled to more jail-time credit
because he had been assigned to a community correctional residential services program
while on probation, which entitles him to jail-time credit under K.S.A. 2014 Supp. 21-
6615(b). Essentially, Lamb argues that the conditions of his probation concerning where
he resided, who he resided with, and who could enter his residence meant that he had
been assigned to a community correctional residential services program. Although Lamb
never explicitly states how many days of jail-time credit to which he believes he is
entitled, it seems that he wants jail-time credit for the entire time he was on probation,
which was 858 days. In his second argument, Lamb asserts that he is entitled to more jail-
time credit because he spent 43 days in an inpatient drug treatment program while on
probation. Nevertheless, neither of Lamb's arguments entitles him to more jail-time
credit.

Lamb's first argument fails because he misinterprets what constitutes an
assignment to a community correctional residential services program as stated in K.S.A.
2014 Supp. 21-6615(b). This court has previously held that to receive jail-time credit for
time spent in a community correctional residential services program, "a defendant must
have resided in a facility which was owned, controlled, operated, maintained, or
contracted for by a community corrections program which is operating under the
Community Corrections Act, K.S.A. 75–5290 et seq." State v. Brasfield, 22 Kan. App. 2d
623, Syl. ¶ 1, 921 P.2d 834 (1996). While Lamb never states in his brief where he was
residing, it seems that Lamb was residing in his own home while on probation. Clearly,
Lamb's home was not a facility owned, controlled, operated, maintained, or contracted
for by a community corrections program. Additionally, in State v. Lakin, No. 111,060,
2014 WL 5313708 (Kan. App. 2014) (unpublished opinion), this court rejected an
identical argument because when a defendant resides in his own home while on
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probation, that defendant is not assigned to a community correctional residential services
program within the meaning of K.S.A. 2014 Supp. 21-6615(b). 2014 WL 5313708, at *2-
3.
Moreover, Lamb's interpretation of what constitutes an assignment to a
community correctional residential services program under K.S.A. 2014 Supp. 21-
6615(b) conflicts with the legislative purpose of the statute. Generally, a defendant on
probation with community corrections will have probation conditions concerning his or
her residence. Under Lamb's interpretation of what assignment to a community
correctional residential services program encompasses, any defendant who had probation
conditions concerning his or her residence would be entitled to jail-time credit for each
day spent on probation. Yet, K.S.A. 2014 Supp. 21-6615(b) explicitly states that a
defendant is entitled to jail-time credit following a probation revocation for only the time
"spent in a residential facility while on probation, assignment to a conservation camp or
assignment to community correctional residential services program." If the legislature
had intended that all defendants receive jail-time credit for each day spent on probation,
as Lamb suggests, why did the legislature include those limitations in K.S.A. 2014 Supp.
21-6615(b)? Obviously, Lamb's interpretation is incorrect because it conflicts with the
purpose of limiting when a defendant is entitled to jail-time credit following the
revocation of his or her probation to the three specific situations stated in K.S.A. 2014
Supp. 21-6615(b). Thus, Lamb's argument fails.

Lamb's second argument also fails because he raises it for the first time on appeal.
Lamb never asserted that he was entitled to more jail-time credit for time spent in an
inpatient drug treatment program before the trial court. In fact, in Lamb's motion, Lamb
references the inpatient drug treatment program only once, simply stating that the
completion of the inpatient drug treatment program was a condition of his probation
without further detail. Additionally, in his brief, Lamb never addresses why this court
should consider this argument even though he never raised it before the trial court.
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Indeed, Lamb never acknowledges that he is raising this argument for the first time on
appeal.

Issues not raised before the trial court cannot be raised for the first time on appeal.
See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). While there are exceptions to
this rule, Kansas Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40) requires
that an appellant explain why an issue raised for the first time on appeal is properly
before an appellate court. An appellant abandons his or her argument raised for the first
time on appeal when that appellant fails to comply with Rule 6.02(a)(5). See State v.
Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068 (2015). Therefore, Lamb has abandoned
his argument by failing to address why his argument, which was not raised before the
trial court, is properly before this court.

Affirmed.