State v. Boatwright

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NOT DESIGNATED FOR PUBLICATION

No. 121,210

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RAMMELO H. BOATWRIGHT,
Appellant.

MEMORANDUM OPINION

Appeal from Shawnee District Court; STEVEN R. EBBERTS, judge. Opinion filed January 10,
2020. Affirmed.

Submitted by the parties for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and
(h).

Before ARNOLD-BURGER, C.J., MALONE and POWELL, JJ.

PER CURIAM: Rammelo H. Boatwright appeals the district court's decision to
revoke his probation and impose his underlying 71-month prison sentence. We granted
Boatwright's motion for summary disposition under Supreme Court Rule 7.041A (2019
Kan. S. Ct. R. 47). After reviewing the record, we find that the district court did not abuse
its discretion in revoking Boatwright's probation. We, therefore, affirm.

FACTUAL AND PROCEDURAL HISTORY

Boatwright entered a guilty plea to one count of aggravated robbery committed in
September 2017. At Boatwright's sentencing hearing, the district court sentenced him to a
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controlling term of 71 months in prison but granted his motion for a dispositional
departure to probation for a term of 36 months.

Ten months later, the district court found that Boatwright violated his probation by
using marijuana, failing to report to or absconding from supervision, and possessing a
firearm as a convicted felon. The district court revoked Boatwright's probation and
ordered him to serve his original 71-month sentence with the Kansas Department of
Corrections. In doing so, the district court made a finding that intermediate sanctions
were unnecessary under the circumstances because Boatwright absconded or committed a
new crime. See K.S.A. 2018 Supp. 22-3716(c)(8). The district court also noted in
comments from the bench that Boatwright was granted probation as a dispositional
departure from a presumptive prison term. See K.S.A. 2018 Supp. 22-3716(c)(9)(B).

ANALYSIS

On appeal, Boatwright contends that the district court abused its discretion by
revoking his probation and ordering him to serve his original prison sentence. However,
Boatwright acknowledges that a district court has discretion to revoke probation upon a
showing that a defendant violated the terms of probation, committed a new crime, or was
granted probation as the result of a dispositional departure.

The procedure for revoking a defendant's probation is governed by K.S.A. 2018
Supp. 22-3716. Generally, once there has been evidence of a violation of the conditions
of probation, the decision to revoke probation rests in the district court's sound discretion.
State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). An abuse of discretion
occurs when judicial action is arbitrary, fanciful, or unreasonable; is based on an error of
law; or is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
The party asserting the district court abused its discretion bears the burden of showing
such an abuse of discretion. State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).
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The district court carefully considered Boatright's impassioned plea for continued
probation.

"Mr. Boatwright, the evidence and arguments today for this Court are very
similar to the evidence and arguments that were presented at your sentencing. And the
Court used that information to depart from a presumed prison sentence in your case and
that was over the State's objections, to place you on probation. The Court took a chance
on you, gave you a golden opportunity that many people similarly situated, I believe, do
not receive.

"Normally, at least for this judge, technical violations, I could consider those and
overlook those sorts of things. You know, the marijuana usage, I remember from your
case you have a long history of marijuana usage and using it at a young age. That's the
kind of thing the Court does understand and took into consideration when it granted you
probation in the case. So those sorts of things could—this Court could take into
consideration in deciding whether you should be sent to prison or placed back probation.

"The thing the Court cannot stand though is failing to report, basically
absconding from supervision and possessing a firearm. I mean, once again, I think we're
back in the situation where I believe you're very lucky you're alive. You're a convicted
felon in possession of a firearm. And I don't know what it's going to take to get the
message through to you that you can't do those sorts of things. So I believe the Court has
gone out on a limb here to give you a golden opportunity and you've squandered it is
what's happened.

"I do think that—I appreciate everything the pastor has said here today, and I
hope that you can be successful after serving time in this case. But punishment is what
was presumed before the Court took a chance on you in authorizing you probation."

Boatwright admitted to committing a new crime while on probation. Additionally,
he was granted probation as part of a dispositional departure from a presumptive prison
term. Both of these circumstances allowed the judge to bypass intermediate sanctions.
See K.S.A. 2018 Supp. 22-3716(c)(8) (offender committed new felony or absconded);
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K.S.A. 2018 Supp. 22-3716(c)(9)(B) (probation originally granted as result of
dispositional departure). After reviewing the record in this case, we find that the district
court's decision to revoke Boatwright's probation was not arbitrary, fanciful, or
unreasonable. The decision to revoke also was not based on an error of fact or law, nor
does Boatwright allege it was. We have no trouble concluding that a reasonable person
could agree with the district court's judgment here. We, therefore, affirm the district
court's decision to revoke Boatwright's probation and impose his original prison sentence.

Affirmed.