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NOT DESIGNATED FOR PUBLICATION

No. 123,632

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

ALEXIS J. MARTELL,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed April 22, 2022. 

Affirmed.

Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant. 

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, 

attorney general, for appellee.

Before BRUNS, P.J., CLINE, J., and JAMES L. BURGESS, S.J.

PER CURIAM: Alexis J. Martell appeals the district court's decision to revoke his

probation and to impose a modified underlying sentence. On appeal, Martell contends 

that the district court abused its discretion in revoking his probation and in imposing a 

prison term rather than an intermediate sanction. In addition, Martell argues the district 

court's modification of his underlying sentence without reexamining his presentence 

investigation report and his resulting criminal score was erroneous. Based on our review 

of the record, we conclude that the district court did not err in rendering its decision 

under the circumstances presented in this case. Thus, we affirm. 
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FACTS 

On January 12, 2005, following his conviction for sexual battery, Martell was 

required to register under the Kansas Offender Registration Act, K.S.A. 22-4901 et seq.

Subsequently, Martell committed two offender registration violations—one in 2009 and 

one in 2018. On July 8, 2019, Martell pled guilty to the 2018 offender registration 

violation. As part of a plea agreement, the parties agreed to recommend an underlying 

sentence according to the high grid box number on the Kansas Sentencing Guidelines' 

chart and to recommend a dispositional departure to 36 months of probation. A 

presentence investigation (PSI) report included prior criminal threat convictions and 

indicated that Martell's criminal history score was A. As a result, the presumptive 

sentencing range for a second offender registration violation was 122 to 136 months in 

prison. 

At sentencing, on August 23, 2019, the district court stated that it had some 

concerns about the length of the sentence. However, Martell's attorney indicated that his 

client was "willing to do probation, it doesn't matter what the sentence is." Moreover, 

Martell personally requested that the district court sentence him under the terms of the 

plea agreement. Ultimately, the district court decided to follow the parties' agreement and 

sentenced Martell to an underlying prison term of 136 months but granted a dispositional 

departure to 36 months of probation. 

In October 2019, the State charged Martell in two new criminal cases. In one case, 

the State charged Martell with fleeing and eluding a law enforcement officer along with 

several traffic violations. In the other case, the State charged Martell with two counts of 

criminal discharge of a firearm. At the preliminary hearings in both cases, the district 

court found probable cause for the respective crimes and bound Martell over for trial. 
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On December 3, 2020, the district court held a probation violation hearing. At the 

conclusion of the hearing, the district court found that the State had established numerous 

violations of the terms of Martell's probation by a preponderance of the evidence. In 

particular, the district court found that Martell had committed new crimes. As a result, the 

district court revoked Martell's probation and ordered him to serve a modified 122-month 

prison sentence, which was the low number in the sentencing grid box. In the journal 

entry entered after the hearing, the district court stated that the reason for revoking 

Martell's probation was because of the new crimes for which he had been bound over for 

trial. Thereafter, Martell filed a timely notice of appeal. 

ANALYSIS

On appeal, Martell challenges the district court's decisions to revoke his probation 

and to impose a modified underlying prison sentence. In addition, Martell challenges the 

district court's reliance on the PSI report when modifying his underlying sentence and 

claims that this resulted in the imposition of an illegal sentence. In the alternative, Martell 

argues that because the "reckless disregard" portion of K.S.A. 2020 Supp. 21-5415(a)(1) 

has been found to be unconstitutional, the case must be remanded to the district court to 

determine whether he was convicted of intentional or reckless criminal threat. 

First, Martell contends that the district abused its discretion by ordering him to 

serve a modified underlying sentence rather than imposing an intermediate sanction. We 

review the district court's decision to revoke Martell's probation under an abuse of 

discretion standard. State v. Reeves, 54 Kan. App. 2d 644, 648, 403 P.3d 655 (2017), rev. 

denied 307 Kan. 992 (2018). A judicial action constitutes an abuse of discretion only if 

(1) no reasonable person would take the view adopted by the district court; (2) it is based 

on an error of law; or (3) it is based on an error of fact. State v. Schaal, 305 Kan. 445, 

449, 383 P.3d 1284 (2016). The party asserting the district court abused its discretion—in 
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this case Martell—bears the burden of showing such abuse of discretion. State v. SmithParker, 301 Kan. 132, 161, 340 P.3d 485 (2014).

Unless otherwise required by law, probation is granted as a privilege and not as a 

matter of right. It is sometimes referred to as "an act of grace" by the district court. State 

v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Here, based on the severity level of 

Martell's offense and his criminal history score, he was facing a presumptive prison 

sentence. Nevertheless, the district court showed leniency and afforded Martell with the 

opportunity to show that he could successfully complete the terms of probation. 

Unfortunately, he was unable to do so.

Shortly after being placed on probation, Martell had committed several violations

of the terms of his probation—including the commission of new crimes. Under such 

circumstances, the district court was well within its discretion to revoke Martell's 

probation. See K.S.A. 2018 Supp. 22-3716(c)(8)(A); State v. Skolaut, 286 Kan. 219, 227-

29, 182 P.3d 1231 (2008); State v. Gumfory, 281 Kan. 1168, Syl. ¶ 1, 135 P.3d 1191 

(2006). In addition, even though the district court revoked Martell's probation, it reduced 

his sentence from the high number to the low number in the grid box. As such, we do not 

find that the district court abused its discretion in revoking Martell's probation. 

Although Martell attempts to "cherry pick" certain statements made by the district 

court at his probation violation hearing to suggest that it somehow abused its discretion, 

we do not find his argument to be persuasive. When the statements made by the district 

court are read in context, it is apparent that the district court was not suggesting that it 

lacked discretionary authority to determine whether to revoke Martell's probation or to 

impose a lesser sentence. Rather, the district court was attempting to highlight Martell's 

lengthy criminal history, his failure to comply with the terms of his probation, and his 

failure to take responsibility for his actions. Instead of taking advantage of the grace he 

had been given by the district court, Martell violated the terms of his probation multiple 
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times and in multiple ways. Accordingly, when read in context, we do not find that the 

district court abused its discretion in revoking Martell's probation or in ordering him to 

serve a modified sentence. 

Additionally, Martell argues that the length of his modified sentence is still too 

long. However, the record shows that Martell expressly requested that the district court 

sentence him to the high end of the sentencing grid box as part of his plea agreement. 

Further, the record reveals that Martell received the benefit of his bargain, and we do not 

find that the district court committed an error of law or fact in its decision to modify 

Martell's sentence to the low end of the sentencing grid box. As a result, we conclude that 

the district court did not abuse its discretion. 

Finally, Martell also argues that the district court erred by relying on the initial PSI 

report to determine his criminal history score at the probation violation hearing. In 

particular, he points to two prior criminal threat convictions. Martell argues that in light 

of State v. Boettger, 310 Kan. 800, 450 P.3d 805 (2019), the district court was required to 

hold a hearing to establish whether his prior criminal threat convictions could be properly 

characterized as "intentional" rather than "reckless." 

When a district court improperly classifies a prior conviction for purposes of 

determining a defendant's criminal history score, an illegal sentence results. K.S.A. 2020 

Supp. 22-3504(c)(1); State v. Dickey, 301 Kan. 1018, 1034, 350 P.3d 1054 (2015) 

(Dickey 1). Under K.S.A. 2020 Supp. 22-3504(a), an illegal sentence may be corrected 

"at any time while the defendant is serving such sentence." This includes challenging a 

criminal history score for the first time on appeal following the revocation of a 

defendant's probation. State v. Dickey, 305 Kan. 217, 219-20, 380 P.3d 230 (2016) 

(Dickey II). The proper classification of a prior conviction is a question of law, over 

which we have unlimited review. Dickey II, 305 Kan. at 220. Similarly, we also have 
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unlimited review to determine whether a sentence is illegal. State v. Neal, 292 Kan. 625, 

630, 258 P.3d 365 (2011). 

In Boettger, the Kansas Supreme Court held that the statutory provision defining 

the crime of reckless criminal threat was unconstitutionally overbroad. 310 Kan. at 822-

23. However, Martell acknowledges that Boettger was decided on October 25, 2019, two 

months after he was sentenced for his offender registration violation on August 23, 2019. 

This is significant because a sentence's legality is fixed at the time of the pronouncement 

of the sentence. Changes made after the termination of a defendant's direct appeal do not 

alter the legality of a sentence. State v. Murdock, 309 Kan. 585, 591-92, 439 P.3d 307 

(2019). Thus, a sentence is not rendered illegal by a postsentencing change in the law and 

a "change in the law" includes an appellate opinion issued after the end of a direct appeal. 

K.S.A. 2020 Supp. 22-3504(c)(1) and (2). 

Martell attempts to get around this in two ways. On the one hand, Martell argues 

that Boettger was not a change in the law. However, numerous panels of this court have 

previously rejected this argument. See State v. Louis, 59 Kan. App. 2d 14, 26-27, 476 

P.3d 837 (2020), rev. denied 313 Kan. 1044 (2021); State v. McCullough, No. 122,167, 

2021 WL 646111, at *3-4 (Kan. App.) (unpublished opinion), rev. denied 314 Kan. 857 

(2021); State v. Miller, No. 121,792, 2020 WL 6533257, at *3-4 (Kan. App. 2020) 

(unpublished opinion), rev. denied 313 Kan. 1045 (2021). Consistent with these prior 

opinions, we find Martell's argument to be unpersuasive. 

On the other hand, Martell suggests that Boettger should apply to the district court 

modifying his sentence at the probation violation hearing. Because the district court 

lowered Martell's underlying sentence from a 136-month prison term to a 122-month 

term after revoking his probation, Martell contends that the district court imposed a new 

sentence that was subject to the holding in the Boettger case. However, we note that 

another panel of this court recently rejected a nearly identical argument. 
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In State v. Zapata-Beltran, No. 122,414, 2021 WL 4932039 (Kan. App. 2021) 

(unpublished opinion), the panel held: 

"Zapata-Beltran also notes the district court could have imposed a lesser sentence 

when revoking his probation. But that possibility does not mandate that Boettger apply. A 

defendant may benefit from changes in the law that occur during direct appeal, but that 

only applies to the direct appeal of a sentence. See Murdock, 309 Kan. at 591 (law in

effect at time of sentencing governs); State v. Resto-Isaac, No. 122,226, 2021 WL

2387474, at *5-6 (Kan. App. 2021) (unpublished opinion) (appeal of probation 

revocation is not a direct appeal of conviction or sentence), [rev. denied 314 Kan. 858

(2021)]; McCullough, 2021 WL 646111, at *3-4 (same)." Zapata-Beltran, 2021 WL 

4932039, at *7. 

We find the reasoning of the panel in Zapata-Beltran to be sound and to be 

applicable to this case as well. Consequently, we conclude that Boettger did not apply to 

the modified sentence ordered by the district court on December 3, 2020, and that the 

district court did not impose an illegal sentence when it modified Martell's sentence to the 

low end of the sentencing grid box. 

Affirmed.