State v. Chester ( 2024 )

NOT DESIGNATED FOR PUBLICATION
No. 126,160
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DEVON GEORGE CHESTER,
Appellant.
MEMORANDUM OPINION
Appeal from Johnson District Court; CHRISTINA DUNN GYLLENBORG, judge. Submitted without
oral argument. Opinion filed April 26, 2024. Affirmed.
Grace E. Tran, of Kansas Appellate Defender Office, for appellant.
Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Kris W.
Kobach, attorney general, for appellee.
Before BRUNS, P.J., GARDNER and ISHERWOOD, JJ.
PER CURIAM: Devon George Chester appeals from the third reinstatement of his
24-month probation term granted to give him additional time to pay court-ordered
restitution. Although K.S.A. 21-6608(c)(6) caps the total length of probation to 60
months, K.S.A. 21-6608(c)(7) allows a district court to extend an offender's probation
past the 60-month cap where a restitution order has not been satisfied. Nevertheless,
Chester contends—for the first time on appeal—that K.S.A. 21-6608(c)(7) violates the
Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United
States Constitution. After reviewing the record on appeal, we decline the invitation to
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consider the constitutionality question for the first time on appeal, and we affirm the
district court's order.
FACTS
The underlying facts are well-known to the parties and will only be briefly
summarized in this opinion. On December 8, 2014, Chester pled guilty to one count of
forgery and one count of theft pursuant to a plea agreement, for crimes committed in June
2014. Significant to this appeal, Chester also agreed to pay restitution and court costs.
The district court followed the recommendation of the parties and placed Chester on
supervised probation for a period of 24 months. In addition, it ordered him to pay $4,500
in restitution to the victim and to make $100 minimum monthly payments on this
obligation until paid in full.
Over the next few years, the record reflects that Chester stipulated to violating the
conditions of his probation on several occasions. For example, in January 2018, the State
filed its third motion to revoke Chester's probation, and he stipulated to committing a new
crime in Missouri. Consequently, the district court reinstated his probation for a new 24-
month term and ordered Chester to make a $500 restitution payment that day and $250
monthly payments beginning the following month.
In December 2020, the State filed its fifth motion to revoke Chester's probation. In
this motion, the State alleged that Chester had failed to report to his probation officer and
had failed to make payments toward his restitution obligation since March 12, 2019.
Subsequently, Chester filed a motion to dismiss in which he asked the district court to
find the restitution plan to be unworkable and to terminate his probation.
On October 25, 2022, the district court held a probation violation hearing. At the
outset of the hearing, the district court took up Chester's motion to dismiss. Chester
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testified regarding his health history and his problems maintaining employment due to his
health struggles and his status as a felony probationer. He also testified regarding his
financial issues and testified that he had to sell personal items and borrow money from
his family to pay for medical treatment.
Chester—who was living in Arizona at the time—testified that he was receiving
assistance from the City of Phoenix to pay for his living expenses. He also testified that
he was receiving food stamps. According to Chester, he had applied to receive disability
benefits from the government but had been denied. After Chester had testified, the district
court took the motion to dismiss under advisement and asked Chester's attorney to
provide documentation to prove that his client had applied for and been denied disability
benefits.
On February 2, 2023, the district court reconvened the probation violation hearing.
In response to the district court's request for documentation regarding the alleged denial
of disability benefits, Chester's attorney represented that neither he nor his client were
able to provide such documents. Ultimately, the district court denied Chester's motion to
dismiss. In doing so, the district court found that the victim in this case had not been
made whole, and the evidence presented by Chester was not sufficient to warrant
dismissal of the case at that time.
The district court then took up the State's motion to revoke probation and Chester
stipulated to the alleged probation violations. After hearing the arguments of counsel, the
district court granted the State's motion to revoke probation. It then reinstated Chester's
probation for a new 24-month term. Furthermore, the district court ordered the following
terms of probation: "No violation of the law, phone-in reporting to Officer Metcalf, and
pay restitution as directed."
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ANALYSIS
The sole issue presented by Chester on appeal is whether K.S.A. 21-6608(c)(7)—
which authorizes a district court to extend the probation term longer than 60 months if
court-ordered restitution has not been paid—is unconstitutional. Specifically, Chester
contends that the statute violates the Equal Protection and Due Process Clauses of the
Fourteenth Amendment to the United States Constitution. In response, the State contends
that we should not exercise our discretion to reach this issue because Chester did not raise
it before the district court. In the alternative, the State argues that the statute is
constitutional for a variety of reasons.
As a general rule, constitutional issues asserted for the first time on appeal are not
properly before an appellate court for review. See State v. Pearce, 314 Kan. 475, 484,
500 P.3d 528 (2021). Nevertheless, there are several exceptions to the general rule that
allow an appellate court to exercise its discretion to take up an issue for the first time on
appeal. These exceptions include: (1) when the newly asserted issue involves only a
question of law arising on proved or admitted facts and is finally determinative of the
case; (2) when consideration of the newly asserted issue is necessary to serve the ends of
justice or to prevent denial of fundamental rights; and (3) when the district court was
right for the wrong reason. State v. Allen, 314 Kan. 280, 283, 497 P.3d 566 (2021).
Significantly, Supreme Court Rule 6.02(a)(5) (2023 Kan. S. Ct. R. at 35) requires
an appellant to explain why an issue that was not raised at the district court level should
be considered for the first time on appeal. State v. Johnson, 309 Kan. 992, 995, 441 P.3d
1036 (2019). Here, Chester asserts that we should consider this issue to protect his
fundamental rights. Chester also suggests that his constitutional challenge to K.S.A. 21-
6608(c)(7) involves a question of law arising on admitted facts.
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Another panel of this court considered a similar argument in State v. Garrett, No.
124,016, 2022 WL 4004580, at *1 (Kan. App. 2022) (unpublished opinion), rev. denied
317 Kan. 847 (2023). In declining the invitation to reach the constitutionality issue for the
first time on appeal, the panel found:
"We have no obligation to address arguments, even constitutional ones, that have
not been presented in the district court. And typically, we do not consider them. See State
v. Swint, 302 Kan. 326, 335, 352 P.3d 1014 (2015); State v. Kelly, 298 Kan. 965, 971,
318 P.3d 987 (2014). But we have, likewise, recognized exceptions that may relax that
rule. Swint, 302 Kan. 326, Syl. ¶ 3. Garrett identifies two of them in her brief. Those
exceptions extend to the appellate court an invitation—not an obligation—to take up an
issue. State v. Parry, 305 Kan. 1189, 1191-92, 390 P.3d 879 (2017)." Garrett, 2022 WL
4004580, at *1.
Although Chester labels the question as a facial challenge to the statute, his
argument is akin to an as-applied challenge. In particular, Chester's argument is based in
large part on his claim of indigency. However, when the district court continued the
probation violation hearing to give Chester or his attorney time to obtain and provide
documentation to establish that he had applied for and been denied disability benefits,
they were unable to do so.
Furthermore, the cases cited by Chester addressing the constitutionality of statutes
based on the treatment of indigent offenders are as-applied challenges to statutes and not
facial challenges. See Bearden v. Georgia, 461 U.S. 660, 664-65,103 S. Ct. 2064, 76 L.
Ed. 2d 221 (1983) (an as-applied challenge to a sentencing court's ability to automatically
revoke probation for failure to pay restitution); Griffin v. Illinois, 351 U.S. 12, 19, 76 S.
Ct. 585, 100 L. Ed. 891 (1956) (an as-applied challenge to an Illinois statute requiring all
criminal defendants to provide a certified copy of the record to appeal his or her
sentence); State v. Duke, 10 Kan. App. 2d 392, 394, 699 P.2d 576 (1985) (an as-applied
challenge to a sentencing court's ability to automatically revoke probation for failure to
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pay restitution). In fact, although Bearden involved an as-applied challenge, Chester asks
us to apply its factors to an issue that he labels as a facial challenge. Regardless, we
decline Chester's invitation to consider the constitutionality of K.S.A. 21-6608(c)(7) for
the first time on appeal.
Because Chester has not otherwise challenged the district court's decision to
extend his probation to allow him the opportunity to pay his court-ordered restitution, we
affirm.
Affirmed.
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