State v. Smith

851 P.2d 397, 18 Kan. App. 2d 297, 1993 Kan. App. LEXIS 47
CourtCourt of Appeals of Kansas
DecidedMay 7, 1993
DocketNo. 68,335
StatusPublished
Cited by1 cases

This text of 851 P.2d 397 (State v. Smith) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Smith, 851 P.2d 397, 18 Kan. App. 2d 297, 1993 Kan. App. LEXIS 47 (kanctapp 1993).

Opinion

Brazil, J.:

Shane L. Smith appeals the denial of presumptive probation or assignment to community corrections following his first adult felony convictions. Smith contends the district court erred in holding that the statutory presumptions favoring probation and community corrections were inapplicable when a de[298]*298fendant’s prior juvenile convictions would have been felonies if committed by an adult. Smith also contends the court abused its discretion in denying probation or assignment to community corrections by only considering Smith’s prior juvenile convictions. We vacate and remand for resentencing.

The standard of review when reviewing the denial of probation is whether the district court abused its discretion.

“Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” State v. Wagner, 248 Kan. 240, 242, 807 P.2d 139 (1991).

K.S.A. 1992 Supp. 21-4606a creates a presumption of probation for first-time offenders convicted of a class D or E felony or who have been convicted of an attempt to commit a class D felony. The statute states:

“The presumptive sentence for a person who has never before been convicted of a felony, but has now been convicted of a class D or E felony or convicted of an attempt to commit a class D felony shall be probation, unless the conviction is of a crime or of an attempt to commit a crime specified in article 34, 35 or 36 of chapter 21 of Kansas Statutes Annotated' or in the uniform controlled substances act or the person convicted is a juvenile offender in the custody of the department of social and rehabilitation services. In determining whether to impose the presumptive sentence, the court shall consider any prior record of the person’s having been convicted or having been adjudicated to have committed, while a juvenile, an offense which would constitute a felony if committed by an adult. If the presumptive sentence provided by this section is not imposed, the provisions of K.S.A. 1992 Supp. 21-4606b shall apply.”

If this presumption of probation is overcome or is inapplicable, the court must then consider the presumption of placement in community corrections. State v. Atwell, 14 Kan. App. 2d 752, Syl., 798 P.2d 517 (1990). K.S.A. 1992 Supp. 21-4606b provides:

“(1) If probation is not granted pursuant to K.S.A. 21-4606a, and amendments thereto, the presumptive sentence for a person convicted of a class D or E felony shall be assignment to a community correctional services program on terms the court determines.
(2) In determining whether to impose the presumptive sentence provided by this section, the court shall consider whether any of the following aggravating circumstances existed:
[299]*299(c) any prior record of the person’s having been convicted of a felony or having been adjudicated to have committed, while a juvenile, an offense which would constitute a felony if committed by an adult.”

In addition to these statutory presumptions, the sentencing court must also consider K.S.A. 21-4601 and K.S.A. 21-4606. State v. Ray, 15 Kan. App. 2d 1, 2-3, 800 P.2d 148 (1990); State v. Atwell, 14 Kan. App. 2d at 753. K.S.A. 21-4601 details the policy of individualizing sentences, and K.S.A. 21-4606 sets forth seven factors which the court should consider when shaping that sentence. State v. Tittes, 245 Kan. 708, 712, 784 P.2d 359 (1989); see State v. McGlothlin, 242 Kan. 437, 747 P.2d 1335 (1988).

In State v. Turner, 251 Kan. 43, 833 P.2d 921 (1992), the Kansas Supreme Court addressed the issue of what the sentencing record must reflect when sentencing presumptions are overcome. Turner was convicted of aggravated assault and was sentenced to 2 to 10 years’ imprisonment. His request for probation was denied. Turner appealed this denial, asserting that the sentencing court had failed to consider the statutory presumption of assignment to community corrections. 251 Kan. at 44.

The Turner court first addressed the issue of presumptive probation. The court reviewed Kansas precedents and found that a sentencing court must fully consider K.S.A. 21-4601 and K.S.A. 21-4606 and make an express record, first showing that it was conscious of presumptive probation and then stating its findings as to why the presumption was overcome. The court is not required to list or discuss all of the K.S.A. 21-4606 sentencing factors, although such a recitation is preferred. However, the court cannot ignore relevant factors. 251 Kan. at 47.

The Turner court then addressed the issue of presumptive assignment to community corrections. The court held that, when rebutting this presumption, the sentencing court must consider the K.S.A. 21-4606 sentencing factors, the need for individualized treatment under K.S.A. 21-4601, and the various aggravating circumstances included in K.S.A. 1992 Supp. 21-4606b. The sentencing court need not address each factor expressly and need not quote the statute, but the record must show that the sentencing court was aware of the statutory presumptions, policies, and sentencing factors. 251 Kan. at 48. A court’s failure to make [300]*300a detailed statement of these factors does not necessarily constitute an abuse of discretion, and each case is to be considered separately on its facts. 251 Kan. at 46;

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Related

State v. LaMunyon
911 P.2d 151 (Supreme Court of Kansas, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
851 P.2d 397, 18 Kan. App. 2d 297, 1993 Kan. App. LEXIS 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-smith-kanctapp-1993.