State v. Haggard ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,033
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
KARA WHITNEY HAGGARD,
Appellant.
MEMORANDUM OPINION
Appeal from Saline District Court; PATRICK H. THOMPSON, judge. Opinion filed July 22, 2022.
Affirmed.
Submitted by the parties for summary disposition under K.S.A. 2021 Supp. 21-6820(g) and (h).
Before ARNOLD-BURGER, C.J., SCHROEDER and WARNER, JJ.
PER CURIAM: Kara Whitney Haggard appeals the district court's decision to place
her on community corrections rather than court services probation for her criminal
conviction. We granted Haggard's motion for summary disposition under Kansas
Supreme Court Rule 7.041A (2022 Kan. S. Ct. R. at 48). The State did not respond. On
review, we affirm Haggard's sentence.
FACTUAL AND PROCEDURAL HISTORY
In November 2020, Haggard pleaded guilty to possessing methamphetamine on
December 16, 2019, in violation of K.S.A. 2019 Supp. 21-5706(a), (c)(1). The district
court determined that Haggard's criminal history classification was G. Based on this and
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Haggard's presentence investigation report, the court imposed an underlying presumptive
prison sentence of 15 months but suspended the sentence in favor of 18 months of
probation to be supervised by community corrections. The district court also ordered
Haggard to complete a mandatory drug treatment program under K.S.A. 2019 Supp. 21-
6824 for up to 18 months.
ANALYSIS
On appeal, Haggard argues that the district court erred in placing her on
community corrections rather than court services probation.
Haggard does not dispute that she was subject to mandatory drug treatment under
K.S.A. 2019 Supp. 21-6824, which requires the district court to order a drug treatment
term of up to 18 months. Nor does she challenge the 18-month term of probation. As to
her sole claim that the district court erred by not assigning court services to monitor her
probation, the statute clearly states that the drug treatment must be supervised by
community correctional services. K.S.A. 2019 Supp. 21-6824(d)(1); State v. Swazey, 51
Kan. App. 2d 999, Syl. ¶ 3, 357 P.3d 893 (2015) (holding that if offender qualifies for
mandatory drug treatment, "the sentencing court is required to commit the offender to
treatment in a drug abuse treatment program [for] no . . . longer than 18 months"). In fact,
Haggard’s counsel agreed that she would have to be supervised by community
corrections under the statute.
"In her case, we're anticipating that she's going to be SB 123, so I don't really see
that there's too big of a problem here. She's going to be supervised by Community
Corrections per the statute. It's just a question of whether or not she's going to be judged
low or high. That could ultimately disqualify her from SB 123 if she doesn't get the right
score, because that LSI-R score is one of the things that can determine her eligibility. But
we know she's going to be with Corrections."
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Given Haggard's crime, criminal history, and presentence investigation report, the
district court followed K.S.A. 2019 Supp. 21-6824(c) by imposing a presumptive prison
sentence of 15 months. In addition, the court followed the statutory requirement of
releasing Haggard to drug treatment. It also followed the statute by ordering an 18-month
suspension of her prison term with a corresponding probation term of 18 months to be
supervised by community correctional services. K.S.A. 2019 Supp. 21-6824(d)(1). It had
no discretion to do otherwise. See State v. Andelt, 289 Kan. 763, 774, 217 P.3d 976(2009) ("A district court does not have discretion to sentence an offender otherwise
qualifying for a drug abuse treatment program to imprisonment.").
We generally lack authority to review a presumptive sentence. See K.S.A. 2019
Supp. 21-6820(c)(1). But our Supreme Court has held that—although mandated—an
order for drug treatment under K.S.A. 21-4729 (now K.S.A. 2021 Supp. 21-6824) is not
considered a presumptive sentence because it is not provided in the Kansas Sentencing
Guidelines Act grid box. See Andelt, 289 at 770-71. So we look only at whether the
sentence the district court imposed was legal. "'A sentence is illegal under K.S.A. 22-
3504 if it: (1) was imposed by a court lacking jurisdiction; (2) does not conform to
statutory provisions in character or term of punishment authorized; or (3) is ambiguous
with regard to the time and manner it is to be served.'" State v. Sartin, 310 Kan. 367, 370,
446 P.3d 1068 (2019). Haggard does not argue that the sentence was illegal, only that the
court "erred." The sentence was clearly not illegal. And even if we used an abuse of
discretion standard, a district court does not abuse its discretion when it fails to exercise
discretion it does not have.
Affirmed.
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