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Nos. 112,389

 112,390

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

ANDRE K. BATTLE,

Appellant.

SYLLABUS BY THE COURT

1.

As a general rule, issues not raised before the district court cannot be raised on 

appeal.

2.

There are several exceptions to Supreme Court Rule 6.02(a)(5) (2015 Kan. Ct. R. 

Annot. 41), including: (1) The newly asserted theory involves only a question of law 

arising on proved or admitted facts and is finally determinative of the case; (2) 

consideration of the theory is necessary to serve the ends of justice or to prevent the 

denial of fundamental rights; and (3) the judgment of the district court may be upheld on 

appeal despite its reliance on the wrong ground or having assigned a wrong reason for its 

decision.

3.

Supreme Court Rule 6.02(a)(5) (2015 Kan. Ct. R. Annot. 41) requires an appellant

to explain why an issue that was not raised below should be considered for the first time 

on appeal. Litigants who fail to comply with this rule risk a ruling that the issue is 

improperly briefed and will be deemed waived or abandoned.
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Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge. Opinion filed December 4,

2015. Affirmed.

Peter Maharry, of Kansas Appellate Defender Office, for appellant.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, attorney general, and Derek 

Schmidt, attorney general, for appellee.

Before HILL, P.J., PIERRON and ARNOLD-BURGER, JJ.

PIERRON, J.: In 2013, Andre K. Battle was convicted in separate cases of 

possession of cocaine and three counts of burglary. On February 25, 2014, he received a 

controlling sentence of 11 months' incarceration for the burglary convictions and a 

consecutive sentence of 28 months' incarceration for possession of cocaine. Battle was 

given presumptive probation for the burglary convictions and had a border box 

classification for the drug conviction. The district court granted probation in both cases 

for a period of 18 months. Battle struggled with the conditions of his probation from the 

outset. 

Two months following the beginning of his probation, the State filed a warrant 

alleging Battle had violated his probation by committing the offenses of possession of

drug paraphernalia and tampering with an automobile. On April 10, 2014, Battle admitted 

the allegations in the warrant and requested reinstatement of his probation. The State 

wanted to revoke Battle's probation and have him serve his underlying sentence of 39 

months' incarceration. The State noted that Battle's criminal history included 24 entries in 

his presentence investigation report. Without making any findings, the district court 

reinstated Battle's probation and extended it for a full term of 18 months with the added 

condition that he enter and successfully complete inpatient drug and alcohol treatment. 

Even given a second chance, Battle quickly failed on probation. 
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Two months after his probation revocation and reinstatement, the State filed a 

warrant alleging Battle had failed to meet the conditions of his probation: He failed to 

report on June 9, 2014; he was a no call/no show the week of June 11, 2014; he was 

discharged from inpatient treatment on May 22, 2014, and had failed to return to drug 

treatment; he was a no call/no show the week of June 18, 2014; and his whereabouts were 

unknown. The State later modified the allegation to provide that Battle had completed 

inpatient drug treatment but he had failed to continue with the outpatient aftercare

treatment. Battle admitted the probation violations. On June 30, 2014, the district judge

revoked Battle's probation and ordered him to serve his incarceration sentence, stating:

"After considering the arguments of counsel and the history involved in this 

matter I cannot find that this defendant is amendable to continued supervision—probation 

in the community. In fact, his continued acts and violations as well as his criminal history 

it appears that he does remain as a threat to the community, and so his probation is 

revoked—will stand revoked." 

On July 1, 2014, Battle filed a notice of appeal. He appealed the revocation of his 

probation, nonreinstatement of probation, imposition of sentence, denial of motion to 

modify sentence, and all adverse rulings. However, on July 9, 2014, Battle filed a pro se 

motion for reinstatement based on the legislature's implementation of the intermediate 

sanctions for probation violations. The district court denied Battle's motion for 

reinstatement finding it lacked jurisdiction to grant the modification requested and that 

Battle had filed a notice of appeal. 

The intermediate sanction provisions now claimed by Battle are retroactive and 

applicable to him. K.S.A. 2014 Supp. 22-3716(c)(12) expressly provides: "The violation 

sanctions provided in this subsection shall apply to any violation of conditions of release 

or assignment or a nonprison sanction occurring on and after July 1, 2013, regardless of 

when the offender was sentenced for the original crime or committed the original crime 

for which sentenced." See State v. Kurtz, 51 Kan. App. 2d 50, 56, 340 P.3d 509 (2014) 
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("The legislature has therefore clarified that the date that controls the law that applies to 

the imposition of sanctions for violating probation is the law that existed when a 

defendant violated probation, not the law that existed when the defendant committed the 

underlying crime as this court held in [State v.] Dreier [, 29 Kan. App. 2d 958, 34 P.3d 

480 (2001)], nor the law in effect when the probation hearing occurred."). The events of 

Battle's probation violations occurred in 2014. Consequently, the applicability date of 

July 1, 2013, for imposing intermediate sanctions has been met. 

However, this issue was not properly raised either at the probation revocation 

hearing or before Battle filed his notice of appeal. Battle argues for the first time on 

appeal that the district court erred by ordering him to serve his underlying sentence 

without first imposing an intermediate sanction under K.S.A. 2014 Supp. 22-3716(c). 

Neither party mentioned the graduated sanction framework at the revocation hearing in 

the district court.

As a general rule, issues not raised before the district court cannot be raised on 

appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). There are several 

exceptions to this general rule, including: (1) The newly asserted theory involves only a 

question of law arising on proved or admitted facts and is finally determinative of the 

case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent 

the denial of fundamental rights; and (3) the judgment of the trial court may be upheld on 

appeal despite its reliance on the wrong ground or having assigned a wrong reason for its

decision. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).

Supreme Court Rule 6.02(a)(5) (2015 Kan. Ct. R. Annot. 41) requires an appellant 

to explain why an issue that was not raised below should be considered for the first time 

on appeal. Litigants who fail to comply with this rule risk a ruling that the issue is 

improperly briefed and will be deemed waived or abandoned. State v. Williams, 298 Kan. 

1075, 1085, 319 P.3d 528 (2014) (cautioning future litigants to comply with rule).
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In State v. Klima, No. 110,660, 2014 WL 3843473, at *2-3 (Kan. App. 2014) 

(unpublished opinion), rev. denied 302 Kan. ___ (2015), the court found that a challenge 

to a district court's purported failure to implement the graduated sanction framework in 

K.S.A. 2013 Supp. 22-3716(c) was not properly raised on appeal because it was not first 

presented to the district court. Klima did not acknowledge his failure to raise the 

argument below, nor did he assert any of the exceptions to the general rule preventing 

him from raising the issue for the first time on appeal. In light of the warning in Williams, 

298 Kan. at 1085, the Klima court declined to address the issue on the merits. 2014 WL 

3843473, at *2-3.

Here, Battle acknowledges that we generally will not review issues raised for the 

first time on appeal and does not argue that any of the exceptions to that rule apply in his 

case. 

As was found in Williams and Klima, Battle has not preserved the issue for 

appellate review. Accordingly, we affirm the district court's decision. See State v. 

Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068 (2015).

Affirmed.