388 P.3d 613
Kan. Ct. App.2017Background
- Defendant Dewayne V. Hambright pleaded guilty to criminal damage to property (severity level 7 felony) and misdemeanor theft; plea included agreement to pay $60,000 restitution.
- Sentencing: presumptive prison/jail terms imposed, and court imposed a 36-month probation term (statutory recommended term was 24 months) and ordered $60,000 restitution at $500/month.
- The district court explained the longer probation based on Hambright’s lengthy criminal history and the large restitution amount impacting the defendant’s welfare.
- At sentencing Hambright testified he earned about $200/week and paid $250/month rent.
- Hambright appealed, arguing the probation extension was illegal or required departure procedures/notice and that the $500/month restitution plan was unworkable.
Issues
| Issue | Plaintiff's Argument (Hambright) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether citing K.S.A. 21-6608(c)(5) made the sentence illegal | Journal entry cited an inapplicable statutory subsection so sentence is illegal | State conceded citation error but argued the court could lawfully extend probation for substantial reasons | Sentence not illegal — bench pronouncement controlled and conformed to statute; citation mistake not fatal |
| Whether increasing probation from 24 to 36 months was a "departure" requiring notice and substantial/compelling reasons | Any increase is an upward durational departure (Whitesell) requiring notice and findings | Changing statutes and precedent make increases within statutory maximum discretionary, not a departure | Not a departure here; increase up to 60 months for listed crimes is discretionary and court did not abuse discretion |
| Whether the district court abused its discretion in extending probation to 36 months | Hambright argued extension was unsupported | State pointed to defendant’s criminal history and restitution needs | No abuse of discretion — court reasonably relied on extensive recent criminal history and restitution concerns |
| Whether the $500/month restitution plan was workable | $500/month plus $250 rent would consume over half of income, leaving inadequate funds for necessities; plan unworkable | State argued indigency does not absolve restitution responsibility | Abused discretion — plan required over half of Hambright’s income and was unworkable; remanded to develop a workable plan |
Key Cases Cited
- State v. Whitesell, 270 Kan. 259 (discussed departure analysis for increased probation)
- State v. Gould, 271 Kan. 394 (Apprendi implications for upward durational departures)
- State v. Gordon, 275 Kan. 393 (probation can be extended to allow restitution payment)
- State v. Carr, 274 Kan. 442 (probation is a privilege, distinct from sentence)
- State v. Herron, 50 Kan. App. 2d 1058 (restitution plan requiring over half income was unworkable)
- State v. Gray, 303 Kan. 1011 (definition of illegal sentence)
- State v. Shank, 304 Kan. 89 (abuse of discretion standard for restitution challenges)
- State v. Davisson, 303 Kan. 1062 (definition of abuse of discretion standard)