State v. Zapata-Beltran ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,414
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JOHN P. ZAPATA-BELTRAN,
Appellant.
MEMORANDUM OPINION
Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed October 22,
2021. Affirmed.
Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.
Thomas R. Stanton, district attorney, and Derek Schmidt, attorney general, for appellee.
Before WARNER, P.J., MALONE and BUSER, JJ.
PER CURIAM: John Zapata-Beltran pleaded guilty to numerous felony offenses in
2017, including several drug crimes and criminal possession of a firearm. The district
court sentenced him to a 73-month prison sentence, then suspended the sentence and
granted Zapata-Beltran 36 months of probation. About 30 months into his probation term,
police found a loaded gun in his bedroom closet—a new crime and a violation of the
conditions of his probation. After hearing evidence concerning the gun, the district court
revoked his probation and ordered him to serve his underlying prison sentence. He now
appeals that decision and also argues that his prison sentence is illegal. We affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
Early on the morning of May 13, 2015, officers from the Hutchinson Police
Department successively obtained and executed three search warrants on Zapata-Beltran's
house and car. In the house, police found plastic baggies, a torn corner of a baggie
containing crystal residue, and two marijuana cigarettes. And while searching the trunk of
the car, police discovered two backpacks containing various quantities of recreational and
prescription drugs, a handgun, and two sets of digital scales. As a result of these
discoveries, Zapata-Beltran pleaded guilty in 2017 to possession with intent to sell
methamphetamine, hydromorphone, and marijuana; possession of hydrocodone; two
counts of possession of drug paraphernalia; criminal possession of a firearm; and
aggravated endangering of a child.
The presentence investigation report in Zapata-Beltran's case classified his
criminal-history score as B. The report indicated that Zapata-Beltran had previously
committed 2 person felonies (a 2006 conviction for contributing to a child's misconduct
and a 2010 conviction for criminal threat), 2 nonperson felonies, 2 person misdemeanors,
and 21 nonperson misdemeanors. At the sentencing hearing, both the prosecutor and
defense counsel indicated there were no objections to the reported criminal-history score.
And Zapata-Beltran did not object to or otherwise challenge any of the information in the
report. Instead, he asked the court for a dispositional departure sentence to allow him to
continue working and stay out of prison. The court granted this request, imposing an
underlying 73-month prison sentence but suspending that sentence and ordering Zapata-
Beltran to serve 36 months of probation.
As part of his probation, Zapata-Beltran agreed to refrain from violating the law;
he also separately agreed that he would not possess any firearms (though possession of a
firearm by a person recently convicted of a felony is itself a crime). But in September
2019, the Barton County Sheriff's Office obtained a warrant and searched Zapata-
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Beltran's home in Great Bend, where he lived with his wife and children. During the
search, deputies found a loaded pistol in Zapata-Beltran's bedroom closet on top of a
personal safe. As a result of this discovery, as well as a few other alleged violations, the
State asked the court to revoke his probation and impose his original prison sentence.
The district court held an evidentiary hearing on the State's request. At the hearing,
Zapata-Beltran's stepfather testified that he met a friend at Zapata-Beltran's house the day
before the search and purchased the gun. Since nobody else was home, he placed the gun
in Zapata-Beltran's closet, spent the night at the house, and left the next morning. Zapata-
Beltran stated that he and his wife and children returned home the morning of the search.
The district court found the testimony from Zapata-Beltran's stepfather lacked
credibility. Though the court found the evidence was insufficient to prove the State's
other alleged violations, it found that Zapata-Beltran had possessed a firearm—a
violation of his probation and a new crime. In light of the serious nature of this violation
and of Zapata-Beltran's convictions, the court revoked his probation and ordered him to
serve his underlying prison sentence.
DISCUSSION
Zapata-Beltran appeals, challenging the legal and discretionary bases for the
district court's revocation of his probation. He also raises two challenges to the legality of
his sentence. After carefully reviewing the record and the parties' arguments, we conclude
that Zapata-Beltran has not apprised us of error. We therefore affirm the district court's
decision.
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1. The district court did not abuse its discretion when it revoked Zapata-Beltran's
probation.
Zapata-Beltran argues the district court erred in two respects when it revoked his
probation and imposed his underlying sentence. He asserts the court abused its discretion
when it ordered him to serve his prison sentence rather than remain on probation, as this
was his only probation violation in the 30 months he had been supervised. He also
asserts—for the first time on appeal—that the court erred as a matter of law, claiming the
restriction on his possession of a firearm violates the United States and Kansas
Constitutions.
Probation is an act of judicial leniency afforded a person as a privilege rather than
a right. See State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). A district court's
decision to revoke probation usually involves two steps—a factual determination that the
probationer has violated a condition of probation and a discretionary determination as to
the appropriate disposition in light of the proved violations. State v. Skolaut, 286 Kan.
219, Syl. ¶ 4, 182 P.3d 1231 (2008). The State has the burden to prove a person violated
the terms of his or her probation by a preponderance of the evidence. State v. Lloyd, 52
Kan. App. 2d 780, Syl. ¶ 1, 375 P.3d 1013 (2016). Appellate courts uphold a district
court's factual findings when they are supported by substantial competent evidence in the
record—"'evidence which possesses both relevance and substance and which furnishes a
substantial basis of fact from which the issues can reasonably be resolved.'" State v.
Brown, 300 Kan. 542, 546, 331 P.3d 781 (2014).
After a violation has been established, the decision to reinstate probation or to
revoke and incarcerate the offender rests within the sound discretion of the district court.
See Skolaut, 286 Kan. at 227-28. A district court abuses that discretion if it rules in a way
no reasonable judicial officer would under the circumstances, if it ignores controlling
facts or relies on unproven factual representations, or if it acts outside the legal
framework appropriate to the issue. See State v. Darrah, 309 Kan. 1222, 1227, 442 P.3d
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1049 (2019); State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011). Zapata-Beltran
carries the burden of showing that the district court abused its discretion. See State v.
Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).
In May 2015, when police originally searched Zapata-Beltran's house and car,
Kansas imposed a system of graduated sanctions for probation violations in felony cases.
Under this system, a district court faced with a violation of probation could impose an
intermediate sanction or revoke probation, depending on the nature of the violation and
the number of previous violations that had occurred. See State v. McFeeters, 52 Kan.
App. 2d 45, 47-48, 362 P.3d 603 (2015). Generally, a court had to impose at least two
intermediate sanctions before revoking probation. K.S.A. 2014 Supp. 22-3716(c)(1)(A)-
(E). But a court could revoke probation without imposing these sanctions if the
probationer committed a new crime. K.S.A. 2014 Supp. 22-3716(c)(8).
Zapata-Beltran does not challenge the district court's factual finding that he
possessed the firearm, and thus violated the terms of his probation. And he acknowledges
that possession of a firearm by a person who has previously committed a felony is a
crime. See K.S.A. 2020 Supp. 21-6304(a)(3)(A). But he argues the court abused its
discretion when it revoked his probation instead of imposing a lesser sanction.
In particular, Zapata-Beltran points out that possessing the firearm was the first
violation of his probation, occurring 30 months into a 36-month probation term. And he
notes that though his convictions eventually resulted from a guilty plea, the district court
had originally suppressed the evidence that led to those convictions. Given these factors,
he argues that it was inherently unreasonable to impose his underlying sentence. But we
disagree.
As the district court acknowledged when it revoked his probation, Zapata-Beltran
pleaded guilty to several serious offenses, including criminal possession of a weapon.
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Though the court originally granted him leniency by way of probation, Zapata-Beltran
knew that he was prohibited both by law and by the terms of his probation from
possessing a firearm. This violation was made all the more egregious considering the
firearm was loaded and Zapata-Beltran had several young children living with him in the
house. And this crime—criminal possession of weapon—was one of the crimes that led
to Zapata-Beltran's current sentence. The district court did not abuse its discretion when it
revoked Zapata-Beltran's probation after he committed this new offense.
Zapata-Beltran also argues that the revocation of his probation based on his
possession of a firearm violated his right to bear arms under section 4 of the Kansas
Constitution Bill of Rights. Zapata-Beltran acknowledges that he did not raise this
constitutional argument—either as a facial challenge or as the statute applies to him—
before the district court.
Constitutional claims generally cannot be raised for the first time on appeal. State
v. Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018). Thus, before this court will consider
the merits of Zapata-Beltran's constitutional claim, he must convince us that his claim
"involves only a question of law arising on proved or admitted facts" or that
consideration of his claim "is necessary to preserve the ends of justice or to prevent the
denial of fundamental rights." State v. Perkins, 310 Kan. 764, Syl. ¶ 2, 449 P.3d 756(2019). Zapata-Beltran urges us to consider this claim for the first time on appeal because
this case implicates his fundamental right to bear arms under the Kansas Constitution.
But we decline to do so.
As a starting point, the fact that Zapata-Beltran's argument may implicate a
constitutional right does not, in and of itself, mean that the issue must be addressed for
the first time on appeal. Appellate courts often decline to review constitutional arguments
because those arguments were not raised below if the record does not otherwise warrant
or permit meaningful consideration. See Daniel, 307 Kan. at 430 (declining to review
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unpreserved challenge under the Ex Post Facto Clause to offender registration statutes);
State v. Godfrey, 301 Kan. 1041, 1042-43, 350 P.3d 1068 (2015) (declining to review
unpreserved due-process claims to a plea agreement); see also State v. King, 288 Kan.
333, 204 P.3d 585 (2009) (declining to consider an alleged violation of the defendant's
Fifth Amendment rights when there had been no contemporaneous objection to the
potentially infringing testimony).
To decide the merits of Zapata-Beltran's constitutional claim, this court would
need to determine—at a minimum—whether section 4 provides coextensive protection to
the Second Amendment to the United States Constitution. This is particularly important
here because in District of Columbia v. Heller, 554 U.S. 570, 626, 128 S. Ct. 2783, 171
L. Ed. 2d 637 (2008), the Supreme Court's seminal decision on the scope of the Second
Amendment, the Court emphasized that the Second Amendment does not prohibit
restrictions on possession of firearms by people who have been convicted of felonies. 554
U.S. at 626 ("nothing in our opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons").
For claims brought under the Kansas Constitution, the Kansas Supreme Court has
indicated that anyone advocating a different reading of a Kansas constitutional provision
from its federal counterpart must "explain why [Kansas courts] should depart from [their]
long history of coextensive analysis of rights under the two constitutions." State v.
Boysaw, 309 Kan. 526, 538, 439 P.3d 909 (2019). Thus, Zapata-Beltran must articulate
something in "the history of the Kansas Constitution or in our caselaw that would suggest
a different analytic framework" should apply to distinguish section 4 from the Second
Amendment. 309 Kan. at 536.
Zapata-Beltran's brief points to textual differences in the federal and state charters
and the fact that section 4 was amended in 2010. But textual differences in and of
themselves are not sufficient to evince a difference in constitutional meaning. See 309
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Kan. at 536-38 (rejecting the argument that sections 10 and 18 of the Kansas Constitution
Bill of Rights provide greater protection than the federal Due Process Clause, despite
marked textual differences between them). And Zapata-Beltran provides no reason why
the 2010 amendment to the Kansas Constitution, adopted less than two years after Heller
held that the Second Amendment conferred an individual right to bear arms, aimed to
provide different protections than existing federal law. See Heller, 554 U.S. at 595. Our
analysis of such a question would require historical development not found in the record
before us.
Zapata-Beltran does not provide any factual, historical, or legal reason why
Kansans intended the protections of the Kansas Constitution to apply more broadly to
persons convicted of felonies than the United States Constitution does. Nor does he
address whether the fact that the prohibition against possessing a firearm was also a
condition of his probation—imposed as a result of multiple recent felony convictions—
changes this analysis. Indeed, section 4's language recognizing an individual right to bear
arms for "any . . . lawful purpose" appears to cut against Zapata-Beltran's broad reading.
See section 4, Kansas Constitution Bill of Rights (2020 Supp.) He has not convinced us
that the fact that this case involves a firearm, and that section 4 provides some protection
for carrying firearms, weighs in favor of wading into these arguments without additional
factual, historical, and legal development.
The district court did not abuse its discretion when it revoked Zapata-Beltran's
probation and imposed his underlying 73-month prison sentence.
2. Zapata-Beltran received a legal sentence.
In addition to his arguments regarding the revocation of his probation, Zapata-
Beltran's appeal raises two claims challenging the legality of his underlying prison
sentence. Both sentencing challenges relate to the legal accuracy of the criminal history
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used to determine Zapata-Beltran's sentence. Though he did not present either sentencing
challenge to the district court, Kansas law recognizes that a court may correct an illegal
sentence at any time, even when first raised on appeal. See K.S.A. 2020 Supp. 22-
3504(a); State v. Sartin, 310 Kan. 367, Syl. ¶ 2, 446 P.3d 1068 (2019). And a sentence
based on an incorrect criminal-history score is illegal. See K.S.A. 2020 Supp. 22-
3504(c)(1); State v. Neal, 292 Kan. 625, 631, 258 P.3d 365 (2011).
Zapata-Beltran first contends his criminal-history score of B was incorrect because
the State failed to prove that his prior conviction of contributing to a child's misconduct
was a felony (as it was treated at sentencing) rather than a misdemeanor.
Unless a defendant admits his or her criminal history, the State bears the burden of
establishing a prior conviction by a preponderance of the evidence. K.S.A. 2020 Supp.
21-6814(a); see also State v. Hankins, 304 Kan. 226, Syl. ¶ 3, 372 P.3d 1124 (2016) (a
criminal defendant cannot stipulate to an illegal sentence). A presentence investigation
report that clearly identifies the defendant's previous convictions generally meets the
State's burden of proof. K.S.A. 2020 Supp. 21-6814(b). A defendant who believes the
report inaccurately characterizes a previous conviction must inform the district attorney
and the court about the error. Otherwise, if the defendant later challenges a previously
established criminal history, the defendant bears the burden of proof. K.S.A. 2020 Supp.
21-6814(c).
The Kansas Supreme Court has also noted that if the presentence investigation
report does not specify which version of a crime applies, the report is insufficient to
sustain the State's burden of proof. See State v. Obregon, 309 Kan. 1267, 1269, 1275, 444
P.3d 331 (2019). In those circumstances—regardless of whether the defendant objects to
the history set forth in the report—the State must provide additional evidence to identify
(and categorize for criminal-history purposes) the defendant's specific crime of
conviction. See 309 Kan. at 1275.
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Zapata-Beltran's presentence investigation report indicated his 2006 conviction for
contributing to a child's misconduct was an "AFP"—an adult person felony—and cited
K.S.A. 21-3612 as the conviction's basis. See K.S.A. 2020 Supp. 21-5603(a) (essentially
recodifying K.S.A. 21-3612); K.S.A. 2006 Supp. 21-3612(a)-(b). That statute contained
six subsections criminalizing different conduct. K.S.A. 2006 Supp. 21-3612(a)(1)-(6).
Four subsections described crimes that were nonperson misdemeanors, and two were
person felonies. K.S.A. 2006 Supp. 21-3612(a).
Zapata-Beltran contends the State did not carry its initial burden of proof at
sentencing because the report did not specify which statutory subsection formed the basis
for his 2006 conviction. But we disagree. Though the report cited to the statute generally,
it identified Zapata-Beltran's 2006 conviction for contributing to a child's misconduct as a
person felony. Zapata-Beltran did not object to this characterization. Thus, consistent
with K.S.A. 2020 Supp. 21-6814(c), the district court did not err at sentencing when it
found the report satisfied the State's burden to sufficiently identify Zapata-Beltran's
conviction for contributing to a child's misconduct.
In his second challenge to his criminal history, Zapata-Beltran argues the district
court erred when it considered his 2010 conviction for criminal threat as part of his
criminal history. He points out that the presentence investigation report did not indicate
whether his criminal-threat conviction was for intentional or reckless conduct. And in
2019, about two-and-a-half years after Zapata-Beltran's sentence was imposed, the
Kansas Supreme Court held that the statutory provision defining the crime of reckless
criminal threat was unconstitutionally overbroad. See State v. Boettger, 310 Kan. 800,
822-23, 450 P.3d 805 (2019), cert. denied 140 S. Ct. 1956 (2020).
A sentence's legality is fixed upon pronouncement of the sentence. That legality
hinges on the law that existed at the time of sentencing; changes made after the
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termination of a defendant's direct appeal do not alter the legality of a sentence. State v.
Murdock, 309 Kan. 585, 591-92, 439 P.3d 307 (2019). Thus, a sentence is not rendered
illegal by a postsentencing change in the law. K.S.A. 2020 Supp. 22-3504(c)(1); see State
v. Dawson, 55 Kan. App. 2d 109, 117, 408 P.3d 995 (2017) (finding 2017 amendment
defining "illegal sentence" as not including a change in the law to be retroactive), aff'd on
other grounds 310 Kan. 112, 118, 444 P.3d 914 (2019) (declining to consider
retroactivity of amendment). A "change in the law" includes an appellate opinion issued
after the end of a direct appeal. K.S.A. 2020 Supp. 22-3504(c)(2).
In Boettger, the Kansas Supreme Court held the reckless disregard provision of the
criminal-threat statute was unconstitutionally overbroad. 310 Kan. at 822-23. Relying on
Virginia v. Black, 538 U.S. 343, 359, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003), which
clarified the meaning of true threats that are not protected by the First Amendment, the
court found the statute could encompass protected speech because it lacked a specific
intent requirement. Boettger, 310 Kan. at 822-23.
Noting that a statute that has been found unconstitutional cannot be used when
calculating a criminal-history score, Zapata-Beltran asserts the State failed to present
sufficient evidence that his prior criminal-threat conviction was for intentional rather than
reckless conduct. See K.S.A. 2020 Supp. 21-6810(d)(9). Zapata-Beltran acknowledges
that Boettger was decided after he was sentenced in 2017. In an effort to overcome this
hurdle, Zapata-Beltran argues Boettger was not a change in the law as it merely applied
Black, which was decided in 2003, before Zapata-Beltran's original sentencing. He also
contends that the district court could have imposed a lesser sentence when revoking his
probation, which occurred after Boettger was decided, so he is entitled to the benefit of
Boettger's holding.
Our court has consistently rejected Zapata-Beltran's first argument—that Boettger
was a legal development rather than a change in the law. See State v. Louis, 59 Kan. App.
112d 14, 26-27, 476 P.3d 837 (2020) (finding Boettger was a change in the law by noting
that Black did not state the requisite level of intent needed to criminalize speech, and
other courts have reached different conclusions about that level), rev. denied 314 Kan.
___ (August 27, 2021); State v. McCullough, No. 122,167, 2021 WL 646111, at *3-4
(Kan. App.) (unpublished opinion) (in appeal of probation revocation, noting Boettger
was change in the law that occurred after time to directly appeal sentence expired), rev.
denied 313 Kan. 1044 (2021); State v. Miller, No. 121,792, 2020 WL 6533257, at *3-4
(Kan. App. 2020) (unpublished opinion) (Boettger was a change in the law; Black neither
stated whether a reckless threat is unconstitutional nor directly addressed whether the
First Amendment prohibits a conviction for reckless speech), rev. denied 313 Kan. 1044(2021); see also State v. Adams, 58 Kan. App. 2d 933, 943-44, 476 P.3d 796 (2020)
(K.S.A. 2019 Supp. 22-3504[c][2] defining "change in the law," which was added in
2019, was likely a response to Murdock; statute does not distinguish between true
changes and developments in the law and encompasses both), rev. denied 312 Kan. 893(2021). We similarly find this argument unpersuasive.
Boettger was not the straight-forward application of Black that Zapata-Beltran
asserts. Rather, Boettger adopted an interpretation of Black that had not been uniformly
adopted. See Boettger, 310 Kan. at 812-17, 820-22 (rejecting other courts' interpretations
of Black requiring only the intent to make the statement, not that the statement be
threatening, citing federal Circuit Courts of Appeals opinions requiring a subjective
intent, and discussing other United States Supreme Court opinions discussing subjective
intent). Given the adoption of a standard that was not expressly stated in Black, Boettger
changed Kansas law. Since the time for Zapata-Beltran to appeal his sentence expired
before Boettger was decided, that case that does not apply to him.
Zapata-Beltran also notes the district court could have imposed a lesser sentence
when revoking his probation. But that possibility does not mandate that Boettger apply. A
defendant may benefit from changes in the law that occur during direct appeal, but that
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only applies to the direct appeal of a sentence. See Murdock, 309 Kan. at 591 (law in
effect at time of sentencing governs); State v. Resto-Isaac, No. 122,226, 2021 WL
2387474, at *5-6 (Kan. App. 2021) (unpublished opinion) (appeal of probation
revocation is not a direct appeal of conviction or sentence), petition for rev. filed July 12,
2021; McCullough, 2021 WL 646111, at *3-4 (same). And though the court could have
resentenced Zapata-Beltran, it did not do so. He is serving the sentence ordered in 2017.
The district court did not err when it included Zapata-Beltran's 2010 conviction for
criminal threat when determining his criminal-history score.
In sum, the district court did not impose an illegal sentence when it considered
Zapata-Beltran's 2006 and 2010 felony convictions as part of his criminal history for
sentencing purposes.
Affirmed.
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