State v. Lamunyon

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NOT DESIGNATED FOR PUBLICATION

No. 117,032

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ERIK LAMUNYON,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed September 22,
2017. Affirmed in part and dismissed in part.

Submitted for summary disposition pursuant K.S.A. 2016 Supp. 21-6820(g) and (h).

Before ARNOLD-BURGER, C.J., PIERRON and GREEN, JJ.

PER CURIAM: When a district court finds that a probationer violated his or her
probation, the court must impose intermediate sanctions before revoking probation and
imposing the underlying sentence. K.S.A. 2015 Supp. 22-3716(c). Erik Lamunyon
appeals the revocation of his probation arguing that the district court abused its discretion
when it revoked his probation without imposing an intermediate sanction. But the district
court had imposed intermediate sanctions already against Lamunyon, and he continued to
violate his probation. Accordingly, we find no abuse of discretion. In addition, Lamunyon
contends that his rights were violated when his prior convictions were used to increase
his sentence without putting the prior convictions before a jury and proving them beyond
a reasonable doubt. But more than 14 days elapsed from Lamunyon's sentencing to the
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filing of a notice of appeal. So we lack jurisdiction over the portion of his appeal
claiming sentencing errors. Accordingly, we affirm in part and dismiss in part.

FACTUAL AND PROCEDURAL HISTORY

Lamunyon pled guilty to one count of failure to register as required by the Kansas
Offender Registration Act in violation of K.S.A. 2015 Supp. 22-4903. As a criminal
history A, he was sentenced to 40 months in prison but granted a dispositional departure
to probation for 24 months. He subsequently served two sanctions for violation of his
probation, one for 3 days and one for 120 days. See K.S.A. 2015 Supp. 22-3716(c)(1)(B),
(C). Upon being released from jail for his 120-day sanction, he failed to report to
community corrections and ran from officers when they tried to apprehend him. After
Lamunyon stipulated to the violation, the district judge noted that Lamunyon had a
criminal history A when he was sentenced, yet was given a chance at probation. Having
violated his probation twice and been given intermediate sanctions, Lamunyon continued
to violate his probation. Accordingly, the judge determined revocation and remand to
serve the balance of his 40-month sentence was appropriate. Lamunyon appeals.

ANALYSIS

The district court did not abuse its discretion when it revoked Lamunyon's probation.

Lamunyon argues that the district court abused its discretion by revoking his
probation and imposing the underlying prison sentence. A district court abuses its
discretion if its decision is based on factual or legal error or no reasonable person would
agree with its decision. See State v. Schaal, 305 Kan. 445, 449, 383 P.3d 1284 (2016).
Lamunyon has not identified a legal or factual error, so his sole argument is that no
reasonable person would have agreed with the district court's decision to revoke his
probation rather than giving him another chance. The party asserting error bears the
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burden of proving an abuse of discretion. State v. Rojas-Marceleno, 295 Kan. 525, 531,
285 P.3d 361 (2012).

Lamunyon does not contest the district judge's findings that he violated his
probation. In fact, he agreed he violated his probation. He argues only that additional
intermediate sanctions were available and the court abused its discretion by not imposing
them rather than revoking his probation and remanding him to serve his term. We
disagree.

Lamunyon correctly argues that K.S.A. 2015 Supp. 22-3716 limits the discretion
of district courts when imposing sanctions on defendants who have violated the terms of
their probation so that, typically, a district court must impose a series of graduated
sanctions before revoking a defendant's probation. See K.S.A. 2015 Supp. 22-3716(c)(1).
After a 2- or 3-day jail sanction under K.S.A. 2015 Supp. 22-3716(c)(1)(B), the court
may issue a longer sanction, 120 or 180 days, but only once. K.S.A. 2015 Supp. 22-
3716(c)(1)(C), (D). If the probationer violates probation again, after this longer 120-day
or 180-day sanction, then the district court may revoke probation and impose the
underlying prison sentence. K.S.A. 2016 Supp. 22-3716(c)(1)(E).

In this case, Lamunyon's crime and criminal history placed him in a presumptive
prison category. He was granted a dispositional departure to probation to avoid prison.
He continued to violate his probation by failing to report and using drugs even after
significant sanctions were imposed, including one for 120 days in prison. Based on this, a
reasonable person could agree with the district court's conclusion that Lamunyon had
demonstrated an unwillingness to comply with the conditions of his probation.

Accordingly, we affirm the district judge's decision to revoke Lamunyon's
probation and remand him to serve the balance of his 40-month jail term.

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This court lacks jurisdiction to consider a challenge to Lamunyon's sentence.

Lamunyon contends that his rights were violated when, at his sentencing in 2016,
his prior convictions were used to increase his sentence without putting the prior
convictions before a jury and proving them beyond a reasonable doubt. Lamunyon's
claim fails.

First, an appeal from a sentence must be filed within 14 days of the sentence. See
K.S.A. 2015 Supp. 22-3608(c). Lamunyon's sentence was announced from the bench on
May 6, 2016. His time to appeal the imposition of his sentence ran out May 20, 2016.
This appeal was filed October 31, 2016. Therefore, any claim now is untimely and
Lamunyon's attempt to appeal the sentence is dismissed.

Moreover, even if we were to consider Lamunyon's appeal of his sentence on the
merits, it still fails. Our Supreme Court has rejected Lamunyon's argument in State v.
Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). This court is obligated to follow our
Supreme Court's precedent unless it is departing from a prior position; as recently as
April 2016, our Supreme Court has declined to revisit Ivory. See State v. Fisher, 304
Kan. 242, 264, 373 P.3d 781 (2016). Therefore, Ivory applies, and even if we had
jurisdiction to consider this issue, the district judge did not err by using Lamunyon's prior
convictions to compute the sentence imposed in this case.

Affirmed in part and dismissed in part.