State v. Aguilar

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NOT DESIGNATED FOR PUBLICATION

No. 116,932

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MIGUEL A. AGUILAR,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; WILLIAM S. WOOLLEY, judge. Opinion filed August 4,
2017. Affirmed.

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

Before ARNOLD-BURGER, C.J., LEBEN, J., and BURGESS, S.J.

Per Curiam: Miguel A. Aguilar appeals the decision of the trial court revoking his
probation and ordering him to serve his underlying sentence. We granted Aguilar's
motion for summary disposition in lieu of briefs under Supreme Court Rule 7.041A
(2017 Kan. S. Ct. R. 48). Concluding that the trial court did not abuse its discretion
because Aguilar admitted to his commission of a new crime, we affirm.

FACTUAL AND PROCEDURAL HISTORY

As part of a plea agreement, Aguilar pled guilty to attempted robbery and
aggravated assault. The district court sentenced him to a 36-month prison sentence but
granted him probation for a term of 24 months.
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Over a year into his probation, the State alleged that Aguilar had violated
probation by missing curfew twice and testing positive for methamphetamine three times.
Aguilar admitted to the violations. The district court ordered Aguilar to serve 2 days in
jail and extended his probation by 12 months.

One month later, Aguilar again violated probation when he failed to report for
drug testing twice, failed to attend drug-and-alcohol treatment, and was unsuccessfully
discharged from the treatment program. As a result, the district court extended Aguilar's
probation by another 12 months and ordered him to complete residential community
corrections in Sedgewick County and to obtain a new drug-and-alcohol evaluation while
in custody.

Approximately 3 months after he completed treatment, the State issued a warrant
for Aguilar for violating his probation by committing the crime of theft, failing to inform
his probation officer of contact with law enforcement, and failing to maintain
employment. Aguilar subsequently admitted committing the new theft offense and
violating his probation as alleged. At his revocation hearing, the district court explained
that it was not statutorily required to grant intermediate sanctions because Aguilar had
committed a new offense, so it revoked Aguilar's probation, denied his motion to modify
his sentence to 23 months, and imposed the underlying sentence.

ANALYSIS

On appeal, Aguilar argues that the district court abused its discretion when it
revoked his probation rather than imposing an intermediate sanction or reducing his
underlying prison sentence.

Once a probation violation has been established, the decision to revoke probation
is within the discretion of the district court. See State v. Skolaut, 286 Kan. 219, 227-28,
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182 P.3d 1231 (2008). That discretion is now limited by K.S.A. 2016 Supp. 22-3716,
which requires that, in most circumstances, the court impose a graduated series of
intermediate sanctions before revoking probation and ordering the defendant to serve his
or her remaining prison sentence. But its provisions requiring intermediate sanctions do
not apply once the court finds that the defendant has committed a new offense. K.S.A.
2016 Supp. 22-3716(c)(8)(A). Accordingly, we review the district court's decision only
for an abuse of discretion. Unless the court has made a legal or factual error, we may find
an abuse of discretion only when no reasonable person would agree with the decision
made by the trial court. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011).

Aguilar concedes that the district court has the discretion to bypass intermediate
sanctions in this case because he committed a new offense. Even so, he argues that
imposing the underlying sentence instead of an intermediate sanction or a reduced
sentence was unreasonable for the theft of $40 boots.

We find nothing unreasonable about the district court's decision here. The district
court had extended Aguilar's probation twice and imposed two intermediate sanctions.
Aguilar repeatedly violated his probation, continuing to miss curfew and use
methamphetamine. At his third hearing, Aguilar conceded that he committed a new
criminal offense in Salina. Under these circumstances, it is reasonable for the court to
find Aguilar not amenable to probation and to require him to serve his underlying prison
sentence.

We therefore affirm the district court's judgment.