                                          No. 117,120

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                       STATE OF KANSAS,
                                           Appellee,

                                                v.

                                   TIELER MICHAEL REEVES,
                                          Appellant.


                                SYLLABUS BY THE COURT

1.
       The plain language of K.S.A. 2016 Supp. 22-3716(c)(1)(E) grants jurisdiction to
the district court to impose the underlying sentence, or any lesser sentence, upon
revoking a defendant's probation.


2.
       An appellate court has jurisdiction to review the district court's denial of a
defendant's request for a lesser sentence upon the revocation of probation, even if the
sentence originally imposed was a presumptive sentence under the guidelines.


3.
       An appellate court reviews the district court's decision to deny a defendant's
request for a lesser sentence upon the revocation of probation for an abuse of discretion.


       Appeal from Riley District Court; MERYL D. WILSON, judge. Opinion filed September 1, 2017.
Affirmed.


       Submitted for summary disposition pursuant to K.S.A. 2016 Supp. 21-6820(g) and (h).



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Before MALONE, P.J., PIERRON and BRUNS, JJ.


       MALONE, J.: Tieler Michael Reeves appeals the district court's denial of his
request for a lesser prison sentence following the revocation of his probation. We granted
Reeves' motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule
7.041A (2017 Kan. S. Ct. R. 48). The State has filed no response. Finding that the district
court did not abuse its discretion in denying Reeves' request for a lesser sentence, we
affirm the district court's decision.


       On March 17, 2014, Reeves pled no contest to one count of conspiracy to commit
aggravated robbery. On March 24, 2014, the district court imposed the standard
presumptive sentence of 32 months' imprisonment but made border box findings and
placed Reeves on probation for 36 months to be supervised by community corrections.


       From December 2014 to November 2016, Reeves returned to court five times for
probation violation hearings. Over the course of that two years, he was ordered to serve
2-day and 30-day jail sanctions, as well as a 120-day sanction with the Department of
Corrections. He also received sanctions from his probation officer at least two times.


       At a hearing on November 14, 2016, Reeves stipulated to violating his probation
on numerous grounds, including failing to report to community corrections as directed
and testing positive for drugs. Reeves told the judge that "probation ain't working out for
me," and he said he wanted to "just go and do my time." However, he asked the district
court to reduce his sentence from 32 months' imprisonment to 23 months. Reeves
acknowledged that he had a drug problem. His counsel pointed out that Reeves was 16
years old at the time of the offense, and he was only 20 years old at the time of the
hearing. The State objected to any sentence modification and pointed out that Reeves had
"completely disappeared from his probation." The district court revoked Reeves'


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probation, specifically denied his request for a sentence modification, and ordered that he
serve the remainder of his original sentence. Reeves timely appealed from that decision.


       On appeal, Reeves does not argue that the district court erred in revoking his
probation. After all, Reeves explicitly asked the district court to revoke his probation so
that he could go and serve his time. However, Reeves claims that the district court
"abused its discretion by [ordering him to serve] his full underlying sentence (32 months)
after revoking his probation, rather than the 23 months for which he argued."


       Resolution of Reeves' claim involves statutory interpretation and raises issues of
appellate jurisdiction. Interpretation of a statute is a question of law over which appellate
courts have unlimited review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098
(2015). Likewise, whether jurisdiction exists is a question of law over which our review
is unlimited. State v. Smith, 304 Kan. 916, 919, 377 P.3d 414 (2016).


       Pursuant to K.S.A. 2016 Supp. 22-3716(c)(1)(E), upon a finding that a defendant
has violated the terms of his or her probation, the district court may impose various
alternative sanctions, including ordering the defendant to serve the sentence imposed "or
any lesser sentence." Generally, a district court does not have jurisdiction to modify a
legal sentence once that sentence is pronounced from the bench. State v. Hall, 298 Kan.
978, 983, 319 P.3d 506 (2014). However, the plain language of K.S.A. 2016 Supp. 22-
3716(c)(1)(E) grants jurisdiction to the district court to modify a sentence by allowing the
court to impose the underlying sentence, or any lesser sentence, upon revoking a
defendant's probation. See State v. McGill, 271 Kan. 150, 154, 22 P.3d 597 (2001).


       K.S.A. 2016 Supp. 22-3716(c)(1)(E) is found in the Kansas Code of Criminal
Procedure; the statute is not part of the revised Kansas Sentencing Guidelines Act
(KSGA). See K.S.A. 2016 Supp. 21-6801 et seq. Our legislature has placed no limitation
on the extent that the district court can modify a defendant's sentence upon the revocation

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of probation, except that the sentence can only be lessened and not increased. The district
court's decision to lessen the defendant's sentence upon the revocation of probation is not
considered to be a "departure sentence" within the meaning of the revised KSGA. See
e.g., K.S.A. 2016 Supp. 21-6815(a). Unlike with the district court's decision to impose a
departure sentence under K.S.A. 2016 Supp. 21-6815(a), the district court is not required
to identify any specific mitigating factors or to find "substantial and compelling reasons"
to lessen the defendant's sentence upon the revocation of probation.


       In Reeves' case, the district court originally imposed a presumptive sentence of 32
months' imprisonment and granted probation. Reeves made no attempt to appeal his
sentence. Two years later, the district court revoked Reeves' probation, denied his request
for a lesser sentence as authorized by K.S.A. 2016 Supp. 22-3716(c)(1)(E), and ordered
him to serve the original sentence of 32 months' imprisonment. Some panels of this court
have held that an appellate court lacks jurisdiction to review a defendant's request for a
lesser sentence upon the revocation of probation, if the sentence originally imposed was a
presumptive sentence under the revised KSGA. See State v. Weekes, No. 115,739, 2017
WL 840280 (Kan. App. 2017) (unpublished opinion); State v. Everett, No. 111,168, 2015
WL 4366445 (Kan. App. 2015) (unpublished opinion). These panels have based that
conclusion on K.S.A. 2016 Supp. 21-6820(c)(1), a provision in the revised KSGA which
provides that an appellate court shall not review any sentence that is within the
presumptive sentence for the crime.


       However, we find that we have jurisdiction to review the specific claim that
Reeves is making in this appeal. Reeves is not attempting to appeal the propriety of his
original presumptive sentence of 32 months' imprisonment that the district court imposed
on March 24, 2014. In fact, his time for appealing his original sentence has long since
expired. See K.S.A. 2016 Supp. 22-3608(c) (defendant shall have 14 days after the
judgment of the district court to appeal). Instead, Reeves is attempting to appeal the
district court's decision made on November 14, 2016, denying his request to serve a

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lesser sentence following his probation revocation. Stated differently, Reeves is not
asking this court to review his presumptive sentence imposed on March 24, 2014, he is
asking this court to review the district court's decision made at the probation violation
hearing denying his request for a sentence modification––a request he was entitled to
make pursuant to K.S.A. 2016 Supp. 22-3716(c)(1)(E). In this instance, we conclude that
K.S.A. 2016 Supp. 21-6820(c)(1) is not a jurisdictional bar to Reeves' appeal.


       K.S.A. 2016 Supp. 22-3716(c)(1)(E) does not mandate the district court to
expressly consider on the record whether the defendant's sentence should be modified
when the issue is not raised at the probation violation hearing. See State v. Cisneros, 42
Kan. App. 2d 376, 380, 212 P.3d 246 (2009). But here, Reeves specifically asked the
district court to impose a lesser sentence upon the revocation of his probation, and the
district court had jurisdiction to consider such a request. See McGill, 271 Kan. at 154.
The district court's decision denying Reeves' request for a sentence modification upon the
revocation of his probation is appealable by Reeves for the same reason that the district
court's decision to revoke probation is appealable in the first place—it is a final judgment
of the district court appealable by the defendant within 14 days after the judgment is
rendered. See K.S.A. 2016 Supp. 22-3601(a); K.S.A. 2016 Supp. 22-3602(a) (addressing
appeals by the defendant from a district court's final judgment in a criminal case); K.S.A.
2016 Supp. 22-3608(c) (setting forth time limitation to file appeal).


       K.S.A. 2016 Supp. 22-3716(c)(1)(E) provides that the district court may order the
defendant to serve the original sentence or any lesser sentence upon the revocation of the
defendant's probation. The use of the permissive term "may" in the statute signals that the
district court has discretion to either grant or deny a defendant's request for a lesser
sentence upon the revocation of probation. Thus, we conclude that an appellate court
reviews such a decision made by the district court for an abuse of discretion. A judicial
action constitutes an abuse of discretion if (1) no reasonable person would take the view
adopted by the district court; (2) the action is based on an error law; or (3) the action is

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based on an error of fact. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015). The
party asserting the district court abused its discretion bears the burden of showing such
abuse of discretion. State v. Smith-Parker, 301 Kan. 132, 161, 340 P.3d 485 (2014).


       Here, the district court heard arguments for and against Reeves' request for a
lesser sentence. On the one hand, Reeves was a young man who acknowledged that he
had a drug problem. However, Reeves was convicted of conspiracy to commit aggravated
robbery, a violent crime. He had numerous failures on probation, and the various
sanctions imposed by the district court did nothing to modify his behavior. In the end,
Reeves "completely disappeared from his probation," and he rejected the efforts of
community corrections to help him with his drug addiction. We are unable to say that no
reasonable person would have denied Reeves' request for a lesser sentence at the
probation violation hearing, and the district court's action was not based on an error of
law or fact. Thus, we conclude the district court did not abuse its discretion in denying
Reeves' request for a lesser sentence upon the revocation of his probation.


       Affirmed.




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