State v. Salinas

811 P.2d 525, 15 Kan. App. 2d 578, 1991 Kan. App. LEXIS 357

• Court: Court of Appeals of Kansas
• Decided: May 24, 1991
• Docket: No. 65,320
• Status: Published

Opinions

Davis, J.:

The defendant, David Salinas, appeals from his sentence of a term of one to two years’ imprisonment following his guilty plea to one count of nonsupport of a child. K.S.A. 1990 Supp. 21-3605.

The State contends that this court has no jurisdiction to hear Salinas’ appeal because a minimum sentence was imposed following a guilty plea. The defendant contends that the trial court abused its discretion by ignoring the statutory criteria (K.S.A. 21-4606) and the policy mandates (K.S.A. 21-4601) in its imposition of sentence. We conclude that we have jurisdiction and that no abuse of discretion has been established.

Jurisdiction

“[A] decision whether or not to grant probation is exclusively a function of the trial court pursuant to K.S.A. 21-4603, and as a general rule a decision denying probation is not subject to appellate review.” State v. VanReed, 245 Kan. 213, 215, 777 P.2d 794 (1989). In State v. Haines, 238 Kan. 478, 712 P.2d 1211, cert. denied 479 U.S. 837 (1986), rev’d on other grounds State v. Harrold, 239 Kan. 645, 722 P.2d 563 (1986), it was specifically held that K.S.A. 22-3602(a) precludes a direct appeal of a denial of probation following a guilty or nolo contendere plea.

An exception to this rule was created in VanReed when a statutory presumption of probation is found to apply, but Salinas does not contend any statutory presumption of probation applies in this case.

In the recent case of State v. Bruner, 15 Kan. App. 2d 369, 808 P.2d 440 (1991), it was held that when a defendant challenges imposition of the sentence, rather than denial of probation or denial of a motion to modify the minimum sentence, the appellate courts “have jurisdiction to hear appeals from the imposition of minimum sentences not involving presumptive probation after a plea of guilty or nolo contendere.” 15 Kan. App. 2d at 373.

In his brief on appeal Salinas challenges only the manner of imposition of his sentence and does not raise a challenge to the denial of his motion for probation. We find that we have jurisdiction to hear this case.

We note that the offense in this case occurred between July 1, 1985, and December 5, 1989. K.S.A. 1989 Supp. 21-4606b, dealing with a presumptive sentence of assignment to a community correctional service program, became effective on July 1, 1989. (L. 1989, ch. 92, § 13) It would appear that defendant is eligible for consideration under subsection b. However, the defendant does not raise this issue and we do not address it. ¹

The Sentence

Salinas argues that the district court abused its discretion by completely ignoring the statutory criteria of K.S.A. 21-4606 and the policy mandates of K.S.A. 21-4601. Salinas contends that the district court determined his sentence by focusing solely on the nature of the offense.

A sentence imposed by a district court will not be disturbed on appeal if it is within the limits prescribed by law and within the realm of discretion of the trial court and not a result of partiality, prejudice, oppression, or corrupt motive. State v. Heywood, 245 Kan. 615, 617-18, 783 P.2d 890 (1989). Nonsupport of a child is a class E felony and the sentence the district court imposed was within the statutory limits. K.S.A. 21-4501(e). Salinas does not contend that the sentencing court’s decision was the result of partiality, prejudice, oppression, or corrupt motive.

A review of the transcript of the sentencing hearing shows that the trial court did not engage in a detailed examination on the record of each of the statutory factors listed at K.S.A. 21-4606(2). Our Supreme Court has stated: “[W]hen the sentence exceeds the statutory minimum, it is the better practice for the sentencing court to place on the record a detailed statement of the facts and factors it considered.” (Emphasis added.) State v. Bennett, 240 Kan. 575, 578, 731 P.2d 284 (1987). In this case the sentence did not exceed the statutory minimum. When the sentencing court imposes a minimum sentence “a record of the factors it considered is even less important.” State v. Brewer, 11 Kan. App. 2d 655, 665, 732 P.2d 780, rev. denied 241 Kan. 839 (1987). Furthermore, failure to place a detailed examination of the sentencing factors on the record does not necessarily indicate the court abused its discretion. “[E]ach case is to be considered separately on its facts.” State v. Meyers, 245 Kan. 471, 479, 781 P.2d 700 (1989).

The factors which the court must consider when sentencing a defendant to a term of imprisonment are:

“(a) The defendant’s history of prior criminal activity;

“(b) The extent of the harm caused by the defendant’s criminal conduct;

“(c) Whether the defendant intended that his criminal conduct would cause or threaten serious harm;

“(d) The degree of the defendant’s provocation;

“(e) Whether there were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;

“(f) Whether the victim of the defendant’s criminal conduct induced or facilitated its commission;

“(g) Whether the defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.” K.S.A. 21-4606(2).

At the sentencing hearing Salinas’ attorney was afforded the opportunity to make extensive remarks. He offered nothing which could amount to any provocation for Salinas’ crime or which suggested that the victims of Salinas’ crime induced or facilitated its commission.

Salinas’ attorney did attempt to offer justification for Salinas’ conduct, suggesting that Salinas’ relationship with his ex-wife was stormy and that he had lost his business in 1985. Salinas himself seems to have acknowledged before the court that his conduct caused substantial harm to his children.

The court also had before it the presentence investigation report prepared for its use. The court expressly noted that Salinas had an extensive record of prior misdemeanor convictions and diversions. The court further noted that Salinas was $36,690.91 in arrears in his child support payments and that this failure to pay had been harmful to his children.

The record demonstrates the sentencing court had before it facts which addressed all the factors set forth in K.S.A. 21-4606. There is no evidence that the court failed to consider the sentencing factors, and it is clear the court’s sentencing decisions were not based simply on the nature of the crime charged.

Affirmed.

1 See order reprinted on page 584.