State v. Heller ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,132
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
RICHARD DEAN HELLER II,
Appellant.
MEMORANDUM OPINION
Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed June 11,
2021. Affirmed in part and dismissed in part.
Submitted by the parties for summary disposition pursuant to K.S.A. 2020 Supp. 21-6820(g) and
(h).
Before POWELL, P.J., MALONE and GARDNER, JJ.
PER CURIAM: Richard Dean Heller II appeals the district court's decision revoking
his probation and ordering him to serve his original sentence. We granted Heller's motion
for summary disposition under Kansas Supreme Court Rule 7.041A (2021 Kan. S. Ct. R.
48). The State has filed no response.
Heller pled guilty to single counts of robbery, possession of methamphetamine
with intent to sell, criminal possession of a firearm by a felon, and criminal carrying of a
weapon for crimes committed in September 2017. On February 9, 2018, the district court
sentenced Heller to a controlling term of 136 months' imprisonment but granted his
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motion for a dispositional departure to probation for 36 months to be supervised by
community corrections. Heller did not appeal his sentence.
Heller was unsuccessful on probation. Without detailing the entire history, the
record shows that Heller admitted to violating the conditions of his probation at least four
separate times, mostly for using methamphetamine. He received 3-day and 60-day
intermediate jail sanctions and also a 120-day prison sanction. Along the way, the district
court gave Heller many chances to complete substance abuse treatment.
In September 2019, the State filed another motion to revoke Heller's probation.
This time, the State alleged that Heller admitted to using methamphetamine the previous
month; he failed to report to his intensive supervision officer on July 17, August 14,
August 21, and August 28, 2019; he was unsuccessfully discharged from a mental health
class for failure to arrange to make up classes he missed; he failed to attend outpatient
substance abuse treatment as directed; and he engaged in illegal activity on July 12, 2019,
by driving while suspended with no liability insurance, failing to stop at a red light,
failing to give information, and leaving the scene of an injury accident.
At a hearing on October 17, 2019, Heller admitted the violations but again asked
for reinstatement to probation. After hearing arguments of counsel, the district court
reviewed Heller's many failures on probation and observed that he "was on Community
Corrections because of a departure." Considering the history of the case, the district court
revoked Heller's probation and ordered him to serve his original sentence. Heller timely
appealed the probation revocation.
On appeal, Heller claims the district court "abused its discretion in denying [his]
request for reinstatement [to probation] because [he] demonstrated a need for inpatient
drug treatment." But he concedes the district court could bypass additional intermediate
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sanctions because his probation was originally granted as the result of a dispositional
departure.
The procedure for revoking a defendant's probation is governed by K.S.A. 2020
Supp. 22-3716. Generally, once there has been evidence of a violation of the conditions
of probation, the decision to revoke probation rests in the district court's sound discretion.
State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). An abuse of discretion
occurs when judicial action is arbitrary, fanciful, or unreasonable; is based on an error of
law; or is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
The party asserting the district court abused its discretion bears the burden of showing
such an abuse of discretion. State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).
Here, the district court showed leniency to Heller by granting a dispositional
departure to probation. The record reflects that Heller had committed several prior
probation violations and had received intermediate sanctions for the violations. As Heller
concedes, the district court did not have to consider another intermediate sanction here
because his probation was originally granted as the result of a dispositional departure. See
K.S.A. 2020 Supp. 22-3716(c)(7)(B). Heller also admitted to committing new crimes
while on probation including driving while suspended with no liability insurance, but the
district court did not rely on this particular ground in revoking the probation. Heller may
have shown a need for more drug treatment, but he failed to take advantage of the
chances he was given. The district court's decision to revoke Heller's probation was not
arbitrary, fanciful, or unreasonable, and it was not based on an error of fact or law. Heller
has failed to show that the district court abused its discretion by revoking his probation
and ordering him to serve his original prison sentence, and we affirm the district court.
Finally, Heller asserts a constitutional claim that the district court "erred in
imposing a greater penalty [based on his criminal history score] that was not charged in
the complaint and proven to a jury beyond a reasonable doubt." But Heller did not timely
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appeal his sentence imposed on February 9, 2018. See K.S.A. 2020 Supp. 22-3608(c)
("For crimes committed on or after July 1, 1993, the defendant shall have 14 days after
the judgment of the district court to appeal."); State v. Inkelaar, 38 Kan. App. 2d 312,
317-18, 164 P.3d 844 (2007) (holding notice of appeal timely only as to probation
revocation; does not allow for appeal of original sentence). And a claim that a sentence
violates a constitutional provision does not make the sentence illegal under K.S.A. 2020
Supp. 22-3504. State v. Warrior, 303 Kan. 1008, 1010, 368 P.3d 1111 (2016). Because
Heller did not timely appeal his sentence, this court lacks jurisdiction to address his
sentencing issue, and we dismiss this part of Heller's appeal. But even if we had
jurisdiction to address the issue, we note that our Supreme Court has resolved this issue
contrary to Heller's position in State v. Ivory, 273 Kan. 44, 46-47, 41 P.3d 781 (2002).
Affirmed in part and dismissed in part.
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