State v. Dilworth

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NOT DESIGNATED FOR PUBLICATION

No. 119,714


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DEANDRE M. DILWORTH,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed April 12,
2019. Affirmed.

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

Before SCHROEDER, P.J., BUSER and ATCHESON, JJ.

PER CURIAM: Defendant Deandre Dilworth appeals the order of the Sedgwick
County District Court revoking his probation on two drug-related convictions and
ordering him to serve the prison sentences. On appeal, Dilworth acknowledges he
received a downward dispositional departure to probation and, thus, was legally eligible
for revocation upon his agreement that he violated various conditions of his probation.
Dilworth contends the district court abused its discretion in declining to continue his
probation despite what he says were substantial mitigating circumstances. We find no
abuse of discretion and affirm.

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The State charged Dilworth with three drug-related felonies, one drug-related
misdemeanor, and two misdemeanor traffic violations in 2015. Through his lawyer,
Dilworth worked out an arrangement with the State under which he pleaded guilty to
possession of a hallucinogenic drug with the intent to distribute, a severity level 3
nonperson drug offense that carries a presumptive prison sentence, and possession of
money derived from a drug crime, a severity level 5 nonperson drug offense. The State
agreed to dismiss the remaining charges and to support a recommendation for low
presumptive guidelines sentences on each conviction to run concurrently and for a
dispositional departure to probation.

Dilworth pleaded guilty in early October 2016 and was sentenced in mid-
November. The district court granted Dilworth's motion for a dispositional departure to
probation in consideration of his lack of any criminal history. The district court also
imposed the low presumptive sentences of 46 months in prison on the possession with
intent to distribute conviction and 10 months in prison on the drug money conviction. But
the district court deviated from the plea agreement by running those sentences
consecutively for a controlling term of 56 months with 36 months' postrelease
supervision. The district court placed Dilworth on probation for 36 months with a
requirement he spend 60 days in jail. The district court also imposed various terms and
conditions of probation and ordered Dilworth to pay fees and costs associated with the
convictions.

Dilworth had a rocky go of it on probation:

• In February 2017, Dilworth agreed he had failed to pay anything toward the fees
and costs and accepted a two-day jail sanction.

• In March 2017, the district court issued a warrant because Dilworth tested
positive for marijuana, a violation of one of the conditions of probation. Dilworth
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stipulated to the violation, and the district court ordered him to serve a three-day jail
sanction.

• In May 2017, the district court issued a warrant because Dilworth again tested
positive for marijuana, failed to report to his assigned court services officer twice, and did
not provide proof he had begun an approved substance abuse treatment program. The
record shows that Dilworth stopped reporting at all after the warrant was issued. He was
taken into custody on the warrant in March 2018.

In the meantime, the State issued yet another warrant for probation violations that
it ultimately dismissed.

At the probation revocation hearing in May 2018, Dilworth agreed he violated his
probation in the ways stated in the May 2017 warrant. Nobody disputed that Dilworth
simply quit reporting and otherwise did nothing required under his probation after the
warrant was issued.

Given Dilworth's spotty probation record, the State asked that the district court
revoke his probation and send him to prison. On Dilworth's behalf, his lawyer requested
that he be placed in community corrections, a more structured and restrictive program
than regular probation but less severe than prison. She cited two deaths in Dilworth's
immediate family in the preceding year, his domestic partner's pregnancy, and a
supportive letter from his employer as reasons for leniency.

The district court relied on K.S.A. 2018 Supp. 22-3716(c)(9)(B) to revoke
Dilworth's probation and ordered him to serve the underlying sentence of 56 months in
prison. Under K.S.A. 2018 Supp. 22-3716(c)(9)(B), a district court may revoke the
probation of a defendant who has received a dispositional departure from a presumptive
prison sentence, as Dilworth did in this case, rather than continuing the probation with an
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intermediate sanction. In short, the district court was not obligated to impose an
intermediate sanction before revoking Dilworth's probation. Even so, Dilworth did get the
benefit of intermediate sanctions rather than revocation for two sets of probation
violations.

The district court noted those failed opportunities given to Dilworth. But the
district court principally relied on Dilworth's decision to effectively abandon his
probation in May 2017 and to do nothing until he was taken into custody on the warrant
about 10 months later. For the same reasons, the district court declined Dilworth's request
to shorten his prison sentence.

Dilworth has appealed. The Appellate Defender Office, on behalf of Dilworth, has
requested summary disposition without full briefing under Kansas Supreme Court Rule
7.041A (2019 Kan. S. Ct. R. 47). The court granted the request after the State agreed
summary disposition would be appropriate.

On appeal, Dilworth submits the district court abused its discretion in revoking his
probation and ordering him to serve the prison sentence in light of the mitigating
circumstances he offered at the revocation hearing. As we regularly point out, probation
is an act of judicial leniency afforded a defendant as a privilege rather than a right. See
State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). A district court's decision to
revoke probation usually involves two steps: (1) a factual determination that the
probationer has violated a condition of probation; and (2) a discretionary determination as
to the appropriate disposition in light of the proved violations. State v. Skolaut, 286 Kan.
219, Syl. ¶ 4, 182 P.3d 1231 (2008).

A defendant's stipulation to the alleged violations satisfies the first step. Here,
Dilworth so stipulated, obviating the State's duty to prove the violations by a
preponderance of the evidence. See State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d
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1191 (2006); State v. Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.3d 844 (2007). After a
violation has been established, the decision to continue the probation or to revoke and
incarcerate the probationer rests within the sound discretion of the district court. See
Skolaut, 286 Kan. at 227-28. Judicial discretion has been abused if a decision is arbitrary,
fanciful, or unreasonable or rests on a substantive error of law or a material mistake of
fact. State v. Cameron, 300 Kan. 384, 391, 329 P.3d 1158, cert. denied 135 S. Ct. 728
(2014). Dilworth carries the burden of showing that the district court abused its
discretion. See State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).

As we have indicated, Dilworth recognizes the district court had the legal
authority to revoke his probation, so there was no misunderstanding of the governing law.
Likewise, Dilworth does not submit the district court mistook the relevant facts in some
way. Rather, he contends the decision to send him to prison was so extreme that no
reasonable judicial officer would come to that conclusion under the circumstances. We
suppose, too, that he says the district court similarly erred in declining to shorten his
prison sentence. We disagree.

Without reiterating the case history, we highlight that Dilworth received a benefit
at the outset with a disposition to probation for a conviction that carries a presumptive
prison sentence. Dilworth then proceeded to serially violate conditions of his probation,
including testing positive for illegal drugs. Those violations seem especially
disconcerting when the underlying convictions were for drug crimes and came coupled
with Dilworth's failure to participate in required substance abuse treatment.

We also appreciate the district court's consternation with Dilworth's decision to
abandon the probation process in May 2017 and his unwillingness to rectify that failure
for 10 months. And Dilworth then turned up only when he was taken into custody on the
warrant for the probation violations. The district court sympathized with the deaths in
Dilworth's family but found the reasons his lawyer offered in mitigation to be too little to
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offset Dilworth's continuing and ultimately complete failure to follow through on
probation. In reviewing the record, we readily conclude other district courts would have
revoked the probation and sent Dilworth to prison to serve the original sentence of 56
months without any reduction. There was no abuse of judicial discretion.

Affirmed.