State v. Cooper

NOT DESIGNATED FOR PUBLICATION

No. 119,036

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ANTONIO COOPER,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed April 5, 2019.
Affirmed.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

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

Before LEBEN, P.J., BUSER and STANDRIDGE, JJ.

LEBEN, J.: On probation for aggravated battery, Antonio Cooper appeals the
revocation of his probation and the imposition of his underlying prison sentence. He
mostly complains that even though he told his case manager, "I want to kill people," the
district court shouldn't have considered that statement to have violated a probation
condition prohibiting "assaultive behavior, violence or threats of violence."

But Cooper had received a dispositional-departure sentence from prison (his
presumptive sentence under state sentencing guidelines) to probation. In that
circumstance, the district court had the discretion to terminate his probation and impose
2

the prison sentence based on any material violation of his probation. See K.S.A. 2018
Supp. 22-3716(c)(9)(B); State v. Cherry, No. 119,568, 2019 WL 985395, at *2 (Kan.
App. 2018) (unpublished opinion), petition for rev. filed March 22, 2019. Cooper
admitted that he had violated probation by testing positive for marijuana in a drug test
and by operating a motor vehicle without a license and insurance. Given the other
evidence presented to the court—including Cooper's statement that he wanted "to kill
people"—the district court did not abuse its discretion by revoking Cooper's probation
even if the specific statement about killing people didn't constitute a probation violation.

Cooper's underlying conviction was for a severity-level-4 aggravated battery, a
serious felony offense. Based on our state's sentencing guidelines, the presumptive
sentence was prison, but the parties agreed to recommend a dispositional departure to
probation. The court granted it, sentencing Cooper to serve 36 months on probation with
an underlying 45-month prison sentence to be served if he didn't successfully complete
his probation. The court ordered Cooper to refrain from recreational drug use and from
driving without a valid license or insurance.

About a week after sentencing, police arrested Cooper for domestic violence. He
pleaded guilty to a reduced charge of misdemeanor battery.

Before sentencing on that battery (and a hearing on whether to revoke his
probation in our case), the State charged him with a separate assault. That criminal charge
was later dismissed, but the assault allegation remained for consideration on the State's
probation-violation claim.

The district court held a hearing to sentence Cooper on the misdemeanor battery
charge and to consider whether to revoke his probation based on the battery conviction
and the acts that had led to the assault charge. The court chose to leave Cooper on
probation in our case.
3


Later, the State brought new allegations of probation violations. The State said that
Cooper had operated a motor vehicle without a license or insurance and had tested
positive for marijuana. In a supplemental report, Cooper's intensive-supervision officer
reported that Cooper wasn't taking his medications, had expressed homicidal thoughts,
and had snorted crushed pills.

Cooper admitted the probation violations—driving without license or insurance
and testing positive for marijuana. But he did not admit the additional statements made
by the officer. The State amended its probation-violation charges to add those allegations
as probation violations, and Cooper's mental-health case manager, Casey Gonzalez,
testified about them in an evidentiary hearing.

She said that Cooper had twice "endorsed [a] homicidal ideation to [her] by
stating, 'I want to kill people.'" She also said that Cooper reported not having taken his
prescribed medication and that she had personally witnessed him take prescription pills
from his pocket, crush them, and then snort them.

The district court found that Cooper had violated his probation. That was an easy
call—Cooper had admitted to several violations, and the court had accepted Gonzalez'
testimony that Cooper had "pulled something out of his pocket and snorted it up his nose"
in front of her. The court correctly noted that the "big concern [was] what to do with the
disposition."

The court noted "legitimate public safety concerns," despite a defense argument
that Cooper hadn't shown that he would act on his expressed desire to kill people. As the
court put it, "Well, I don't know that we need to wait to find out until he does." The court
also noted several aspects of Cooper's mental-health problems discussed in this and
earlier hearings.
4


After getting input from both sides, the court revoked the probation and ordered
that Cooper serve his prison sentence. The court noted that Cooper had committed a
domestic battery only five days after he was put on probation, that he wasn't taking his
medications for mental-health issues, and that Cooper was expressing a desire to kill
people: "[T]he Court is genuinely concerned about the public safety."

On appeal, Cooper mainly complains that saying to a mental-health worker or a
probation supervisor that you sometimes want to kill people isn't the same as making a
specific threat to kill or harm someone. Thus, Cooper argues, those statements shouldn't
have been considered a violation of the probation requirement that he refrain from
"assaultive behavior, violence or threats of violence."

Cooper may be right on that point, but it does not affect the bigger picture. The
district court faced two questions. First, did Cooper violate his probation? Second, should
Cooper's probation be revoked and his prison sentence imposed?

On the first question, Cooper admitted that he violated the probation in two
important respects, and the court found some other violations (like snorting prescription
drugs in front of the officer and not taking his medications) supported by the evidence
that aren't challenged on appeal.

On the second question, because of the dispositional-departure sentence, the
district court had the discretion to revoke the probation and send Cooper to prison for any
material probation violation. We reverse a discretionary decision like that only if it's
based on an error of law or fact or if no reasonable person would agree with it. State v.
Brown, 51 Kan. App. 2d 876, Syl. ¶ 4, 357 P.3d 296 (2015).

5

Cooper essentially argues that the decision was based on an error of law and fact
because the court relied on the statement about wanting to kill people when that didn't
directly violate Cooper's probation. But we generally uphold a probation revocation even
when one ground the district court relied on may be invalid as long as another basis for
the revocation was proper. See State v. Grossman, 45 Kan. App. 2d 420, 428, 248 P.3d
776 (2011); State v. Hagan, No. 106,338, 2012 WL 5392105, at *5 (Kan. App. 2012)
(unpublished opinion); see also State v. Brown, 305 Kan. 674, 693, 387 P.3d 835 (2017)
(following the same rule for departure sentences).

And here, even if Cooper is right that saying "I want to kill people" didn't directly
violate the probation terms, the district court could properly consider that statement in
deciding what to do. As the district court recognized, the key question before it was not
whether Cooper had violated the probation—he had. Convicted for aggravated battery, he
had committed another battery while on this probation. And now, with serious mental-
health problems and a history of not taking prescribed medications designed to address
those problems, he was saying he wanted to kill people. Whether or not those statements
violated the probation, they were relevant in considering how the court should exercise its
discretion.

We find no abuse of discretion and affirm the district court's judgment.