State v. Dominguez

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NOT DESIGNATED FOR PUBLICATION

No. 119,746

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

FERNANDO DOMINGUEZ,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; KEVIN J. O'CONNOR. Opinion filed May 17, 2019.
Affirmed.

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

Before STANDRIDGE, P.J., GARDNER, J., and WALKER, S.J.

PER CURIAM: Fernando Dominguez appeals the district court's decision to revoke
his probation and order him to serve his original sentence. We granted Dominguez'
motion for summary disposition pursuant to Supreme Court Rule 7.041A (2019 Kan. S.
Ct. R. 47). The State has responded that it does not object to summary disposition, and it
requests that the district court's judgment be affirmed.

On November 15, 2016, Dominguez pled guilty to a single count of criminal
possession of a weapon, a severity level 8 nonperson felony. His criminal history score
for this offense was C. The presumptive disposition for nondrug grid block 8-C is
probation, but Dominguez was subject to a special rule allowing the district court to
disregard this presumption, since he was on felony probation in Phillips County at the
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time the criminal weapons violation occurred in this Sedgwick County case. The
sentencing range in grid block 8-C is 17-18-19 months. See K.S.A. 2018 Supp. 21-
6804(a).

On January 4, 2017, the district court sentenced Dominguez to 19 months in
prison, consecutive to his Phillips County time. But the district chose not to invoke the
special rule allowing it to send Dominguez to prison, instead granting him probation for
18 months, supervised by community corrections.

On May 15, 2018, community corrections filed a report with the court alleging
Dominguez violated several conditions of his probation, including new offenses of
driving under the influence (DUI) of alcohol and driving while suspended, as well as
admissions of consuming alcohol, using methamphetamine, and failing to pay court costs.
At the probation violation hearing held on June 4 and 27, 2018, the State presented the
testimony of the state trooper who had arrested Dominguez on the DUI and driving while
suspended charges as well as his community corrections officer. Dominguez admitted the
alleged violations concerning alcohol and methamphetamine use and his failure to pay
court costs. The district court found that Dominguez had violated his probation on all
counts alleged by the State, revoked the probation, and ordered that he serve out his
original 19-month prison sentence. In denying Dominguez' request for a new probation,
the district court found that he was not amenable to further probation and that the safety
of members of the public would be jeopardized by granting Dominguez further probation.

On appeal, Dominguez argues that the district court abused its discretion in
revoking his probation and ordering him to serve his original prison sentence. This is
true, he contends, because the court did not adequately address his drug addiction, which
is "the apparent underlying cause of his legal troubles."

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Once a 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, 182 P.3d
1231 (2008). Judicial discretion is abused if the action "(1) is arbitrary, fanciful, or
unreasonable, i.e., if 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. 948, Syl. ¶ 7, 398 P.3d 856 (2017). Dominguez 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).

When a convicted felon violates the terms of probation, Kansas law generally
provides that he or she receive an intermediate sanction, such as a short jail stay followed
by a return to probation, rather than being sent to prison on the first violation. K.S.A.
2018 Supp. 22-3716(c)(1). But there are exceptions to the general rule: intermediate
sanctions are not required when the offender commits a new crime. K.S.A. 2018 Supp.
22-3716(c)(8)(A). Likewise, intermediate sanctions are not required if the "court finds
and sets forth with particularity the reasons for finding that the safety of members of the
public will be jeopardized or that the welfare of the offender will not be served by such
sanction." K.S.A. 2018 Supp. 22-3716(c)(9)(A).

Notably, in his motion for summary disposition of his appeal, Dominguez admits
that the district court had statutory authority to impose the underlying sentence based
upon its findings that he represented a danger to public safety and committed new
misdemeanor offenses. The language of his appeal does not take issue with the
sufficiency of the district court's findings on these issues. Dominguez only remonstrates
against the court's refusal to once again grant him probation, which would have allowed
him to deal with his drug addiction in the community.

As noted previously, unless the district court has made a legal or factual error, we
may find an abuse of discretion only when no reasonable person would agree with the
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decision made by the district court. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801
(2011). Given Dominguez' presence on felony probation in Phillips County when he
committed the criminal weapons violation in this case, the district court's forbearance by
granting Dominguez probation at sentencing when the special rule would have allowed
his immediate imprisonment, plus the new misdemeanors and admitted drug and alcohol
use while on probation, we are not persuaded that no reasonable person would have taken
the view of the district court. Accordingly, we conclude the district court did not abuse its
discretion.

Affirmed.