State v. Burke ( 2021 )

NOT DESIGNATED FOR PUBLICATION
Nos. 123,665
123,666
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
STEVEN K. BURKE,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed December 17,
2021. Affirmed in part and dismissed in part.
Submitted by the parties for summary disposition under K.S.A. 2020 Supp. 21-6820(g) and (h).
Before ARNOLD-BURGER, C.J., HILL and POWELL, JJ.
PER CURIAM: Steven K. Burke appeals from the district court's order revoking his
probation and imposing the underlying sentence in case No. 17CR2723 (case 1) and from
his sentence in case No. 19CR2933 (case 2). We granted Burke's motion for summary
disposition under Supreme Court Rule 7.041A (2021 Kan. S. Ct. R. 48). The State
responded, asserting the district court's decision to revoke probation was not an abuse of
discretion and that this court lacks jurisdiction to review his sentencing challenge because
it resulted from a plea agreement. Finding no error, we affirm in part and dismiss in part
for the reasons set forth below.
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FACTUAL AND PROCEDURAL HISTORY
In December 2017, Burke entered a guilty plea in case 1 to one count of
distribution of methamphetamine, a felony. In January 2018, the district court sentenced
him to 105 months in prison but granted a dispositional departure to 36 months of
probation.
In August 2018, Burke's intensive supervision officer (ISO) alleged he committed
several probation violations by committing new crimes, including possession of
marijuana and methamphetamine, and a traffic infraction. Burke stipulated to these
violations at a hearing in October 2018, and the district court imposed a 60-day jail
sanction as well as ordering Burke to complete a residential community corrections
program as a modified condition of probation.
In April 2019, Burke's ISO alleged he committed additional violations of
probation by committing traffic infractions and consuming methamphetamine and
marijuana. Burke stipulated to these violations and the district court imposed another 60-
day jail sanction, with potential for an early release to a residential community
corrections program and entry into a sober living environment as modified conditions of
probation.
In July 2019, Burke's ISO alleged he violated his probation again by testing
positive for methamphetamine and for committing the new crime of aggravated escape
from custody. In October 2019, the State formally charged Burke in case 2 with
aggravated escape from custody, a felony.
In October 2020, Burke entered a guilty plea in case 2, acknowledging in the plea
agreement that this would constitute a probation violation in case 1. The parties agreed to
recommend the mid number in the appropriate guidelines grid box—in this case 14
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months in prison—and that the sentence would run consecutive to all prior cases,
including the underlying sentence in case 1. At a hearing in December 2020, the district
court sentenced Burke to 14 months in prison in case 2, then revoked his probation in
case 1 and imposed the underlying 105-month prison sentence.
Burke timely appeals.
ANALYSIS
Burke raises two issues in this appeal: (1) whether the district court's revocation
of his probation in case 1 was an abuse of discretion; and (2) whether the district court
erred in sentencing him in case 2.
The district court did not abuse its discretion in revoking probation and imposing the
underlying sentence in case 1.
Burke argues first that the district court abused its discretion by revoking his
probation and imposing the underlying sentence in case 1.
As he recognizes, however, once a violation is established, the decision to revoke
probation rests within the sound discretion of the district court. See State v. Dunham, 58
Kan. App. 2d 519, 528-29, 472 P.3d 604 (2020). A judicial action constitutes an abuse of
discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law;
or (3) it is based on an error of fact. State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931(2018). Burke bears the burden of showing an abuse of discretion. See State v. Ballou,
310 Kan. 591, 615, 448 P.3d 479 (2019).
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Burke does not challenge the alleged probation violations in this appeal, which he
stipulated to below. Similarly, beyond stating the district court abused its discretion,
Burke does not point to any errors of fact or law in the court's decision.
Although he does not reference it in his motion, the district court's authority to
revoke probation in this case is controlled by K.S.A. 2016 Supp. 22-3716. According to
that statute, the district court needed to impose a series of graduated intermediate
sanctions before revoking probation, subject to certain exceptions. K.S.A. 2016 Supp. 22-
3716(c). One exception allows the district court to revoke probation without intermediate
sanctions if an offender commits a new felony or misdemeanor while on probation.
K.S.A. 2016 Supp. 22-3716(c)(8)(A).
Burke concedes that the district court had the legal authority to revoke his
probation because he committed a new crime—in particular, aggravated escape from
custody in case 2—while on probation in case 1. By entering a guilty plea to this charge,
Burke acknowledged that he would be in violation of his probation in the other case, so
he would have invited any error in revoking probation. See State v. Verser, 299 Kan. 776,
784, 326 P.3d 1046 (2014) ("In general, when a defendant has invited error, he or she
cannot complain of the error on appeal.").
Even so, Burke fails to persuade us that the district court abused its discretion in
revoking his probation in case 1 and imposing the underlying sentence. Notably, after the
district court departed from his presumptive prison sentence and granted probation, Burke
continued committing new crimes and violated probation by possessing and consuming
illegal drugs. Although Burke had already served two 60-day jail sanctions and
completed modified treatment programs, the district court did not have to impose any
sanctions before revoking his probation. Based on the record before us, we conclude the
district court did not abuse its discretion in case 1.
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We lack jurisdiction to consider Burke's appeal in case 2.
Burke next challenges the sentence imposed in case 2 but offers no further
explanation of how the district court erred. Based on the record, Burke seems to be
challenging the application of a special sentencing rule that allowed the district court to
impose a prison sentence instead of the presumptive probation applicable to his
conviction.
Burke freely acknowledges that Kansas law does not allow us to review "[a]ny
sentence that is within the presumptive sentence for the crime." K.S.A. 2020 Supp. 21-
6820(c)(1); see also State v. Huerta, 291 Kan. 831, 837, 247 P.3d 1043 (2011) (appellate
courts lack jurisdiction to review presumptive sentence "even if they result from
partiality, prejudice, oppression, or corrupt motive"). Similarly, Kansas law prohibits an
appeal of "any sentence resulting from an agreement between the state and the defendant
which the sentencing court approves on the record." K.S.A. 2020 Supp. 21-6820(c)(2);
see also K.S.A. 2020 Supp. 22-3602(a) ("No appeal shall be taken by the defendant from
a judgment of conviction before a district judge upon a plea of guilty or nolo contendere
. . . ."); State v. Smith, 311 Kan. 109, 122, 456 P.3d 1004 (2020) (stating if defendant
moves to withdraw plea and district court denies that motion, "the Court of Appeals will
have jurisdiction to consider an appeal from that denial").
Here, Burke entered a guilty plea and was convicted of aggravated escape from
custody, which is a felony. Although he would normally qualify for presumptive
probation for that offense based on his criminal history, the parties agreed to recommend
the application of a special rule. In particular, the district court had discretion to impose a
prison sentence instead of probation because Burke committed the crime while on
probation for another felony. K.S.A. 2019 Supp. 21-6604(f)(1). The statute creating this
rule specifically states that "[i]n this event, imposition of a prison sentence for the new
crime does not constitute a departure." K.S.A. 2019 Supp. 21-6604(f)(1). The district
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court followed this rule, sentencing Burke to 14 months in prison and ran the sentence
consecutive to his underlying sentence in the probation case.
Thus, the prison sentence imposed by the district court here was a presumptive
sentence under Kansas law, as well as a sentence agreed upon by the parties in Burke's
plea agreement and approved on the record. Likewise, at no point has Burke indicated a
desire to withdraw his plea. For these reasons, we must dismiss Burke's sentencing
challenge in case 2 for lack of appellate jurisdiction.
Affirmed in part and dismissed in part.
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