State v. Battle ( 2015 )

Nos. 112,389
112,390
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ANDRE K. BATTLE,
Appellant.
SYLLABUS BY THE COURT
1.
As a general rule, issues not raised before the district court cannot be raised on
appeal.
2.
There are several exceptions to Supreme Court Rule 6.02(a)(5) (2015 Kan. Ct. R.
Annot. 41), including: (1) The newly asserted theory involves only a question of law
arising on proved or admitted facts and is finally determinative of the case; (2)
consideration of the theory is necessary to serve the ends of justice or to prevent the
denial of fundamental rights; and (3) the judgment of the district court may be upheld on
appeal despite its reliance on the wrong ground or having assigned a wrong reason for its
decision.
3.
Supreme Court Rule 6.02(a)(5) (2015 Kan. Ct. R. Annot. 41) requires an appellant
to explain why an issue that was not raised below should be considered for the first time
on appeal. Litigants who fail to comply with this rule risk a ruling that the issue is
improperly briefed and will be deemed waived or abandoned.
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Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge. Opinion filed December 4,
2015. Affirmed.
Peter Maharry, of Kansas Appellate Defender Office, for appellant.
Lesley A. Isherwood, assistant district attorney, Marc Bennett, attorney general, and Derek
Schmidt, attorney general, for appellee.
Before HILL, P.J., PIERRON and ARNOLD-BURGER, JJ.
PIERRON, J.: In 2013, Andre K. Battle was convicted in separate cases of
possession of cocaine and three counts of burglary. On February 25, 2014, he received a
controlling sentence of 11 months' incarceration for the burglary convictions and a
consecutive sentence of 28 months' incarceration for possession of cocaine. Battle was
given presumptive probation for the burglary convictions and had a border box
classification for the drug conviction. The district court granted probation in both cases
for a period of 18 months. Battle struggled with the conditions of his probation from the
outset.
Two months following the beginning of his probation, the State filed a warrant
alleging Battle had violated his probation by committing the offenses of possession of
drug paraphernalia and tampering with an automobile. On April 10, 2014, Battle admitted
the allegations in the warrant and requested reinstatement of his probation. The State
wanted to revoke Battle's probation and have him serve his underlying sentence of 39
months' incarceration. The State noted that Battle's criminal history included 24 entries in
his presentence investigation report. Without making any findings, the district court
reinstated Battle's probation and extended it for a full term of 18 months with the added
condition that he enter and successfully complete inpatient drug and alcohol treatment.
Even given a second chance, Battle quickly failed on probation.
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Two months after his probation revocation and reinstatement, the State filed a
warrant alleging Battle had failed to meet the conditions of his probation: He failed to
report on June 9, 2014; he was a no call/no show the week of June 11, 2014; he was
discharged from inpatient treatment on May 22, 2014, and had failed to return to drug
treatment; he was a no call/no show the week of June 18, 2014; and his whereabouts were
unknown. The State later modified the allegation to provide that Battle had completed
inpatient drug treatment but he had failed to continue with the outpatient aftercare
treatment. Battle admitted the probation violations. On June 30, 2014, the district judge
revoked Battle's probation and ordered him to serve his incarceration sentence, stating:
"After considering the arguments of counsel and the history involved in this
matter I cannot find that this defendant is amendable to continued supervision—probation
in the community. In fact, his continued acts and violations as well as his criminal history
it appears that he does remain as a threat to the community, and so his probation is
revoked—will stand revoked."
On July 1, 2014, Battle filed a notice of appeal. He appealed the revocation of his
probation, nonreinstatement of probation, imposition of sentence, denial of motion to
modify sentence, and all adverse rulings. However, on July 9, 2014, Battle filed a pro se
motion for reinstatement based on the legislature's implementation of the intermediate
sanctions for probation violations. The district court denied Battle's motion for
reinstatement finding it lacked jurisdiction to grant the modification requested and that
Battle had filed a notice of appeal.
The intermediate sanction provisions now claimed by Battle are retroactive and
applicable to him. K.S.A. 2014 Supp. 22-3716(c)(12) expressly provides: "The violation
sanctions provided in this subsection shall apply to any violation of conditions of release
or assignment or a nonprison sanction occurring on and after July 1, 2013, regardless of
when the offender was sentenced for the original crime or committed the original crime
for which sentenced." See State v. Kurtz, 51 Kan. App. 2d 50, 56, 340 P.3d 509 (2014)
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("The legislature has therefore clarified that the date that controls the law that applies to
the imposition of sanctions for violating probation is the law that existed when a
defendant violated probation, not the law that existed when the defendant committed the
underlying crime as this court held in [State v.] Dreier [, 29 Kan. App. 2d 958, 34 P.3d
480 (2001)], nor the law in effect when the probation hearing occurred."). The events of
Battle's probation violations occurred in 2014. Consequently, the applicability date of
July 1, 2013, for imposing intermediate sanctions has been met.
However, this issue was not properly raised either at the probation revocation
hearing or before Battle filed his notice of appeal. Battle argues for the first time on
appeal that the district court erred by ordering him to serve his underlying sentence
without first imposing an intermediate sanction under K.S.A. 2014 Supp. 22-3716(c).
Neither party mentioned the graduated sanction framework at the revocation hearing in
the district court.
As a general rule, issues not raised before the district court cannot be raised on
appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). There are several
exceptions to this general rule, including: (1) The newly asserted theory involves only a
question of law arising on proved or admitted facts and is finally determinative of the
case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent
the denial of fundamental rights; and (3) the judgment of the trial court may be upheld on
appeal despite its reliance on the wrong ground or having assigned a wrong reason for its
decision. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).
Supreme Court Rule 6.02(a)(5) (2015 Kan. Ct. R. Annot. 41) requires an appellant
to explain why an issue that was not raised below should be considered for the first time
on appeal. Litigants who fail to comply with this rule risk a ruling that the issue is
improperly briefed and will be deemed waived or abandoned. State v. Williams, 298 Kan.
1075, 1085, 319 P.3d 528 (2014) (cautioning future litigants to comply with rule).
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In State v. Klima, No. 110,660, 2014 WL 3843473, at *2-3 (Kan. App. 2014)
(unpublished opinion), rev. denied 302 Kan. ___ (2015), the court found that a challenge
to a district court's purported failure to implement the graduated sanction framework in
K.S.A. 2013 Supp. 22-3716(c) was not properly raised on appeal because it was not first
presented to the district court. Klima did not acknowledge his failure to raise the
argument below, nor did he assert any of the exceptions to the general rule preventing
him from raising the issue for the first time on appeal. In light of the warning in Williams,
298 Kan. at 1085, the Klima court declined to address the issue on the merits. 2014 WL
3843473, at *2-3.
Here, Battle acknowledges that we generally will not review issues raised for the
first time on appeal and does not argue that any of the exceptions to that rule apply in his
case.
As was found in Williams and Klima, Battle has not preserved the issue for
appellate review. Accordingly, we affirm the district court's decision. See State v.
Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068 (2015).
Affirmed.
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