Defendant David Dugan appeals from the denial of his motion to modify sentence, alleging the district court abused its discretion by ignoring the Topeka Correctional Facility's (TCF) recommendation that he be placed on probation. After concluding we have jurisdiction to consider this appeal, we find a recommendation of probation was made by TCF. We reverse the district court's denial of the motion to modify and remand for reconsideration of the motion to allow the district court to either reduce the sentence or make the necessary findings pursuant to K.S.A. 1991 Supp. 21-4603(4)(a).
On February 11, 1991, Dugan entered no contest pleas to charges of attempted indecent liberties with a child, K.S.A. 1991 Supp. 21-3301 and K.S.A. 1991 Supp. 21-3503, a class D felony; theft of property valued at less than $500, K.S.A. 21-3701, a class A misdemeanor; and obstructing legal process or official duty, K.S.A. 21-3808, a class A misdemeanor. All of these crimes occurred in either September or October 1990. In return for these pleas, the State dismissed all other charges pending against Dugan and agreed to recommend a one- to five-year prison sentence on the felony charge with the sentences on the misdemeanor charges
Community Corrections prepared an addendum to the report, which concluded:
A sentence modification hearing was held on July 3, 1991, and the court ruled:
The sole issue raised by Dugan is whether the district court abused its discretion in denying his motion to modify where TCF recommended probation and the court failed to make the findings required by K.S.A. 1991 Supp. 21-4603(4)(a). As Dugan had received a minimum sentence after entering nolo contendere pleas, this court issued an order directing the parties to show cause why this appeal should not be dismissed for lack of jurisdiction pursuant to State v. Beechum, 251 Kan. 194, 833 P.2d 988 (1992).
Beechum had pled guilty and was sentenced to a minimum sentence. He then filed a motion to modify, which was denied
Although Dugan received a minimum sentence after entering pleas of nolo contendere and he alleges the district court abused its discretion in denying his motion to modify, the holding in Beechum does not require dismissal of this appeal for lack of jurisdiction. This court has jurisdiction to consider this appeal because Dugan contends the court failed to make the findings required in 21-4603(4)(a). When a defendant alleges a sentencing court has failed to comply with the statutory mandates of 21-4603(4)(a), this court has jurisdiction to review that allegation. To hold otherwise would subvert 21-4603(4)(a) by severely limiting appellate review of cases where it is alleged that the statute should have been followed by the district court, but was disregarded. In State v. VanReed, 245 Kan. 213, 217, 777 P.2d 794 (1989), this same exception was recognized to allow a direct appeal from a denial of probation in cases where K.S.A. 21-4606a applied:
K.S.A. 1991 Supp. 21-4603(4)(a) states, in relevant part:
This court has considered this statute and noted:
The State argues the TCF recommendation was equivocal because it used the word "might": "In spite of our concerns, we do believe that Mr. Dugan's welfare, as well as that of society, might be best served if he is placed on a well-supervised probation." The State also notes the report is filled with concerns that indicate probation might not be appropriate. A complete reading of the recommendation, however, shows there is no question the TCF officials believed probation was the appropriate result in this case. There is no other way to explain the following statement in the report: "Therefore, we are advising that he be allowed to return to live with his mother [under very restricted circumstances]."
The State argues the equivocal nature of the recommendation is apparent because the recommendation included a comment that, if the recommended restrictions could not be imposed, then incarceration was appropriate. The TCF recommendation was that Dugan be placed on probation with a number of extreme limitations. This is undoubtedly a recommendation for probation. TCF was acknowledging, however, that the restrictions as recommended might pose administrative or other practical problems
Once we conclude the TCF recommendation was that Dugan be placed on probation, 21-4603(4)(a) requires that the court either grant probation or make the two findings required by the statute. Moon, 15 Kan. App.2d at 10. In this case, the court did not grant probation and did not make any findings. "Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused when no reasonable person would take the view adopted by the trial court." State v. Wagner, 248 Kan. 240, 242, 807 P.2d 139 (1991). In light of the requirements of 21-2603(4)(a) that the court either grant probation or make specific findings, the court's failure to do either can only be seen as arbitrary and unreasonable; therefore, the court abused its discretion.
Reversed and remanded.