State v. Daniels

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NOT DESIGNATED FOR PUBLICATION

No. 117,314

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ERNEST R. DANIELS,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Opinion filed September 22,
2017. Affirmed.

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

Before MALONE, P.J., LEBEN and POWELL, JJ.

PER CURIAM: Ernest R. Daniels appeals the district court's decision to revoke his
probation and impose the underlying prison sentence. We granted Daniels' motion for
summary disposition pursuant to Supreme Court Rule 7.041A (2017 Kan. S. Ct. R. 48),
which, in its response, the State did not contest. After review, we affirm the district court.

Daniels pled guilty to one count of fleeing and eluding, a severity level 9 person
felony, and the district court sentenced Daniels to 11 months in prison but placed him on
probation from that sentence for 12 months. The district court also allowed Daniels to
transfer supervision of his probation to Colorado. While Daniels was on probation, the
State filed an order to appear alleging that Daniels had failed to pay court costs. The State
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then filed a second order to appear, alleging that Daniels had committed the crime of
misdemeanor trespass in Colorado. At the probation violation hearing, Daniels admitted
to committing this new crime but offered an explanation in mitigation. Specifically,
Daniels claimed that his crime was riding on public transit without a ticket and that he
simply did not have his ticket with him that day. Daniels' evidence in mitigation
notwithstanding, the district court revoked Daniels' probation and imposed his underlying
prison sentence.

On appeal, Daniels argues the district court abused its discretion by revoking his
probation and imposing the underlying prison sentence. A judicial action constitutes an
abuse of discretion if the action "(1) is arbitrary, fanciful, or unreasonable, i.e., no
reasonable person would have taken the view adopted by the trial court; (2) is based on
an error of law . . . ; or (3) is based on an error of fact." State v. Jones, 306 Kan. ___, Syl.
¶ 7, 398 P.3d 856, 859 (2017). Daniels bears the burden to show an abuse of discretion by
the district court. See State v. Rojas-Marceleno, 295 Kan. 525, 531, 285 P.3d 361 (2012).
However, because Daniels admitted he violated his probation by committing a new
crime, the district court had the discretion to revoke his probation. See K.S.A. 2016 Supp.
22-3716(c)(8); State v. Gumfory, 281 Kan. 1168, Syl. ¶ 1, 135 P.3d 1191 (2006). While
admittedly Daniels' explanation, if true, could cause a reasonable person to differ with the
district court's revocation decision, we cannot hold that no reasonable person would have
taken the same position. In considering what action to take, the district court cited several
other factors, including the defendant's full criminal history record, the facts of the
underlying offense of conviction, and the recommendation of the defendant's Kansas
probation supervisor. We conclude the district court did not abuse its discretion in
revoking Daniels' probation and imposing the underlying prison sentence.

Affirmed.