*1 (165 1050) P.3d 96,613 No. Kansas, State Martinez, v. Nicholas L. Appellee,
Appellant. *2 filed Opinion 17, 2007. August Cox, Office, Kansas Defender Appellate appellant. Janine *3 Matthews, McPherson, A. Scott E. county assistant Douglas attorney, county Kline, and Phill attorney, attorney general, appellee. Hill, McAnany, Brazil, Before and P.J., J., S.J. McAnany, Nicholas L. Martinez tire district court’s appeals J.: of an sentence
imposition upward dispositional following departure his to of cocaine and a child. guilty plea possession endangering (1) He raises two main fact issues: whether the that he is an illegal alien (2) the denial of and whether justifies presumptive probation the district him fair notice her a of intention to judge gave impose We sentence. conclude that under the present statutory scheme for the fact that an Martinez is probationers, illegal circumstances, under certain limited constitute a substantial may, and for the reason district court to Neverthe- depart. less, the district failed to determine whether those limited judge circumstances existed and also failed to provide adequate warning Therefore, of her intent to we must vacate Martinez’ sen- depart. tence and remand the case for resentencing.
Martinez also raises issue with to the of assessment regard (BIDS) Board of Defense Services fees. Indigents’ attorney We conclude that must set we aside the order for fees and attorney remand for reconsideration of the assessment consistent with State and K.S.A. Robinson, 132 P.3d 22-4513. L. Millard Detective arranged facts are not Terry dispute. The first trans- Martinez. from of for a controlled drugs buy from cocaine of the transfer with was concluded action powered consummated was second transaction son. The Martinez’ young and, was arrested Martinez Martinez pursuant drugs. delivering found additional warrant, Police house was searched. a search also found cards. cocaine, stolen social with two They security along Resident Service and Naturalization United States a Immigration card social victims of the one of the issued to security Alien card of Martinez’ card bore resident alien thefts. The photograph wife. cocaine, of of with the sale was
Martinez possession charged child, theft, and distribute, a with intent cocaine endangering unlawful Pursuant card. of an identification plea possession amended to an entered a Martinez charge plea guilty agreement, return, In a child. and of cocaine endangering possession that the and recommended State dismissed remaining charges It was sentence ap- presumptive impose that at the of his counsel the comments from plea hearing parent eli- about alien. In was an Martinez commenting treatment, stated: his counsel for drug gibility status, Martinez, or not be may may of his Mr. because citizenship “I believe treatment. He may may for the Senate Bill 123 mandatory under eligible — fate of that he risks the Mr. Martinez I have here. I think explained and Mr. was who I on similar deported, his brother charges represented — continues, I that that’s McPherson and both Mr. expect if the INS *4 Martinez that’s not Mr. have to We guaranteed what’s certainly going happen. not to happen.” going matter for sentenc- and set the
The court plea accepted ing. sentence, the dis- a before
At the imposing hearing, sentencing stated: trict judge Well, here is that whether— that arises the first “THE COURT: question Okay. that is in this if I remember right correctly; is not country Mr. Martinez legally —
right? correct, “THE INTERPRETER: That’s Your Honor. “THE . . . me COURT: that arises for is to follow the Okay, problem because is here is Mr. Martinez in the and is in guidelines vio- illegally lation of rules from start if I were to him on probation right place pro- bation. . . . . . . has with all the conditions of the [H]e comply and he can’t do that because he’s in violation of the law to violate not federal any reason, or state so for that am laws. And I to have a going big problem following these but is there reason I should sentence guidelines, any why impose legal at this time?” affirmative,
When neither the court im- party responded an sentence posed upward dispositional departure by denying pre- Martinez to 11 months’ im- sumptive probation on the cocaine conviction and a concurrent sentence prisonment of 1 in the on the a child conviction. year county jail endangering The court also ordered Martinez to reimburse BIDS for his attor- fees. ney
Martinez appeals. Sentence Departure Martinez as an his status alien was not a sub- argues illegal stantial and reason to him deny presumptive probation. He that the claims court’s reliance on as an his status violations, resulted in him sentenced for an un- being immigration intended of the use as well aas violation of his due guidebnes process equal protection rights.
It is from the outset what this case is not important recognize about. Under the our enacted guidebnes legislature, that he should be enjoyed presumption granted pro- bation. This is not in which situation the district court determined that Martinez was terms of his incapable fulfilling specific pre- concluded, The district court as a matter of sumptive probation. law, that his mere as alien rendered him inca- with the Had law. Martinez been on pable complying placed with the essential that he with all requirements comply laws, the district could this to include appbcable expect with the authorities as duty register required by 1302(a) (2000), U.S.C. 444 whereabouts as report ongoing 1305(a) 8 U.S.C. and to otherwise conform required by
329
Thereafter,
the district
and criminal laws.
our civil
his conduct
if he failed
in violation of his
find him to be
court could
concluded,
However,
and the State ar-
district court
to do so.
alone made him
status
on
appeal,
gues
of his
further examination
without
for
willing-
ineligible
to fulfill the
conduct
to the law or
to conform his
ness or ability
terms of his
probation.
proposed plan
the sen
to determine whether
review a
sentence
We
departure
of fact and reasons
court’s
justifying
departure
findings
tencing
(2)
in the record and
evidence
(1) are
substantial
by
supported
State
for
and
reasons
substantial
constitute
departure.
compelling
Neri,
rev. denied
121,
1131, 1132,
v.
278
95 P.3d
32 Kan.
2d
App.
and
(2004).
a substantial
Whether
a factor constitutes
Kan. 850
of law over which
for
is a
reason
question
compelling
625-26,
Martin, 279 Kan.
623,
State v.
review is unlimited.
appellate
real,
must be
(2005).
the reason
P.3d 192
To be substantial
112
substance, not
To be
and of
compelling
ephemeral.
imagined,
court,
the facts of the
which forces the
the reason must be one
by
the sentence
case,
and to venture
to abandon the status
beyond
quo
State v.
271 Kan.
McKay,
it
See
that would
ordinarily impose.
(2001).
P.3d
of sub-
21-4716(c)
a nonexclusive list
K.S.A. 2006
contains
factors.
stantial
Extra-statutory depar-
compelling departure
than those enumerated
to stricter
ture factors are
scrutiny
subject
804, 807,
In the court concluded that status immigration relevant, is not se but the consider a per may of the defendant’s conduct which demonstrates the de- pattern fendant’s to conform his conduct to unwillingness legal require- ments. 116 Or. at 223. App. Zavala-Ramos, the court in found that
Applying Morales-Aguilar court did not because the defendant was an depart alien, but because of the defendant’s absolute of illegal disregard law and his 121 Or. at 458-59. pending deportation. App.
In whether Martinez’ sentence was determining jus- tified, we must decide whether there is an between incongruity in Kansas and his serving ongoing presence in this anas alien. The district court believed that country illegal there was.
It is from an examination of K.S.A. 2006 21- apparent 4716 and the Kansas cases that do not address they directly this issue. 21-4716(c)(2) K.S.A. 2006 a nonexclusive list provides of factors that be considered aggravating may determining whether there are substantial and reasons to compelling depart. This list includes victim, of the of the vulnerability brutality act, the defendant, motivation of the between de- relationship victim, fendant and whether the defendant is a sexual predator, and whether the defendant was incarcerated at the time die crime was committed. is not listed as
Although nonamenability
explicidy
a substantial and
reason to
our courts have re-
depart,
that it is.
See State v.
peatedly recognized
Grady,
While presence country However, our laws. to the full obligations imposed range ject into this has criminalized while country, illegal entry Congress in the of an the continued it has not made alien has been a crime unless United States previously 8 U.S.C. entered this and has country illegally. again deported has been (2000) for an alien who makes it a deported felony thereafter be States or at the United to thereafter reenter anytime States. in the United found are this who enter
Those subject illegally persons *7 acknowl- Martinez’ counsel 8 U.S.C. 1227 § deportation. at the this may hearing. Deportation plea edged possibility factors, alien’sinitial the number of based entry including upon any in this such to law or acts while this into country, contrary country However, while an of certain crimes. as the commission illegal in the that is person’s ongoing presence subject deportation, had itself is not a crime unless United States in and of person into this coun- and been illegal entry previously deported regained 1192, 1193-94 595 F.2d See United States v. Rincon-Jimenez, try. in 1979). States Court (9th As noted the United Cir. Supreme n.6, Cores, 2 L. Ed. 2d 78 356 U.S. United States v. on 8 U.S.C. 1325 and when it commented S. Ct. § ones, are not as similar statutes: “Those offenses ‘entry’ continuing and is limited to a suggests continuity.” locality hardly particular in the Martinez’ continued The district court viewed presence with United States a term of be incompatible during probation “Mr. Martinez is as an alien. The court observed: his status rules and is in violation of probation country illegally him on This is the start if I were to from place probation.” right and thereafter reen- if Martinez had been true deported previously 1326 would make his mere 8 U.S.C. tered § country illegally. hand, if Martinez here a On the other felony. ongoing presence has not in violation of 8 U.S.C. but entered the § is not a crime been ongoing presence previously deported, he is Since the district court made though subject deportation. Martinez, no that 8 U.S.C. 1326 we must set finding applies § aside sentence remand for If Mar- resentencing. tinez has not been then the mere fact of his deported, previously alien status does not in itself render him unamenable to hand,
On the other had Martinez been previously deported reentered the the district court’s observations country illegally, would be correct: Each he served on would be a day probation day on which he violated 8 U.S.C. 1326. The presentence investiga- tion for Martinez recommended that if he were on report placed he should serve his under the probation, probation supervision a court services officer. law his would have been con- By ditioned him not States, the laws of the United upon violating Kansas, State of other to which he be sub- any jurisdiction may 21-4610(a). See K.S.A. Further, a defendant on ject. is to meet with the court serv- probation typically required assigned ices officer on some basis. Such an would periodic arrangement have Martinez’ continued in the area required through- out term of his one of the recom- probation. Interestingly, mended restriction, i.e., conditions was a travel would have been to remain within a 100-mile radius of required his residence in Kansas unless he had the of his court permission Further, services officer. he would have been from leav- prohibited Kansas without the written of his court services ing permission Thus, officer. it is that fulfillment of the readily apparent statutorily *8 mandated and additional recommended terms would probation have been inconsistent with Martinez in reside this continuing as an the term of his if country throughout probation he had been and had since reentered this previously deported country illegally.
Court service officers are the chief of the appointed by judge district as certain and admin- judicial necessary perform judicial istrative functions of the district court. K.S.A. 2006 20-345. are officers of the court. a multitude of im- They They perform court, tasks for the the of defendants portant including supervision on 20-346a(b). See K.S.A. have the au- placed probation. They of the terms a for to arrest violating probationer thority revo- can lead to the which initiate and to ultimately proceedings 22-3716(a). A K.S.A. 2006 See cation of grant in violates this one whose country ongoing presence court servicesofficer 1326would the 8 U.S.C. supervising require § defendant’s the the other to “look daily ongoing way” ignore of law. violations 643, 659, 1081, Ohio, 6 L. Ed. 367 U.S. 2d in v.
As stated Mapp (1961): 1684, reh. denied U.S. 81 S. Ct. than failure to its a more its observe can quickly destroy government
“Nothing laws, worse, existence. As Mr. of the charter of its own own its disregard Justice 438, States, 485[, Brandéis, said in Olmstead United v. 277 U.S. 72 L. dissenting, (1928): 944, is the 48 S. Ct. ‘Our Ed. government potent, omnipresent 564] ill, its ... If For or for it teaches the whole teacher. people by example. good lawbreaker, law; it it invites becomes a breeds every contempt government ” himself; it man to a law into invites become anarchy.’ can no more substantial and We conclude that there compelling law. a court’s actions than the rule of reason for preservation Thus, if continued in the United States is a defendant’s in of 8 U.S.C. 1326 that fact alone violation (previously deported), reason to constitute substantial may deny pre- sumptive probation. are that state courts forum proper argues status. It is true that the courts of this
adjudicate
immigration
of aliens. See
state
no status with
to the classification
respect
enjoy
Davidowitz,
581,
85 L. Ed.
during proceedings. is to consider whether Martinez has been in permitted deported past determining amenability probation. out it is not the function of the correcdy points state courts to enforce our national laws. The district immigration court was not our national laws enforcing immigration by simply status for the of decid- recognizing immigration purpose whether he is amenable to The fact that our national ing probation. leaders, reasons, or have chosen to political, policy, budgetary violations of our laws does not our ignore prevent courts from whether a defendant is in an considering engaging violation of law in that defendant’s amena- ongoing determining court should not be bility compelled which, nature, its cannot be impose plan by very successfully completed.
Martinez also
that the
court’s
sen-
argues
tence denied his constitutional
due
and the
rights
process
equal
of the laws. Martinez does not
how the sen-
protection
explain
court denied his
to due
An issue asserted in
tencing
right
process.
without
is deemed
passing
supporting argument
authority
Holmes,
603,
waived.
622,
State v.
278
(2004).
Kan.
Finally, persuaded by argument district court’s decision to an bond is irreconcilable grant appeal with its decision to of an deny probation. appropriateness ap- bond is not determinative of whether a substantial and com- peal reason sentence. departure pelling supports We do not to breach the line between presume inteipreting the law on one hand and on the applying establishing public policy We leave the latter task other. to our branch. But our legislative 21-4610(a), in K.S.A. 2006 has man- legislature, enacting Supp. defendant, dated a that the dur- provision every probation plan the term of not violate the laws the United States. ing probation, státe, So as this remains the law of we our must refrain from long that undermines its clear and intent. Fur- any activity unequivocal ther, the court must in- to permitted recognize herent conflict which a defendant’s successful com- may impede with a of which the defendant’s pliance plan requires continued in the and the defendant’s com- jurisdiction with the laws of the United States the term of pliance throughout Thus, if Martinez-is in the United States in probation. present violation of 8 U.S.C. 1326 the district court (previouslydeported), consider this fact in he whether could may determining successfully a of complete plan
Notice Intent to Depart of
Martinez also claims he was not notice or an given opportunity intent district court’s sen- respond impose departure tence. In this issue we must look to the of resolving requirements 21-4718(a)(3). K.S.A. Whether these requirements which were met is an issue of law over courts exercise appellate unlimited review. State v. 157, 159, 281 Kan. 130 P.3d Bryan, (2006). court, Martinez did not raise this issue before the district
While facts and is limited to a the issue arises from undisputed question Schroeder, we will address it. See State v. Hence, of law. P.3d 21-4718(a)(3) K.S.A. 2006 states: volition, “If the court decides to on its own without a motion from the depart defendant, state or the the court must all its intent and allow notify parties time if reasonable for either The notice shall state party respond requested. the court and the reasons and factors relief intended type *11 upon.”
Here, the did not become aware of the court’s parties sentencing intent to until the depart sentencing hearing. notice its
court’s
intention to
must be reasonable. “At a
depart
minimum,
this means it
at
must be
such a time and with
provided
such
that the defendant and the State have a fair
specificity
op
to marshal and
their
for or
portunity
present
arguments
against
Carr,
State v.
before sentence is
proposed departure
pronounced.”
(2001),
442,
29 Kan.
2d
It is clear that notice of her intent to sentencing judge’s was There was no advance notice depart inadequate. prior actual When the notice sentencing hearing. sentencing judge gave of her intent Martinez was not depart, provided adequate to marshal and opportunity present arguments against depar- ture before sentence was the notice pronounced. Consequently, satisfied, 21-4718(a)(3) of K.S.A. 2006 was not requirement Supp. and we are to vacate the sentence and remand for re- required sentencing.
BIDS Fees the district court’s order that he
Finally,
challenges
reimburse BIDS for
fees because the court failed to ex-
attorney
consider on the record his
the fees. The State
plicitly
ability
pay
Robinson,
that State v.
concedes
281 Kan.
Hill, I concur with the result. J., concurring: