State v. Downing

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NOT DESIGNATED FOR PUBLICATION

No. 121,641

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CURTIS D. DOWNING,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed February
14, 2020. Affirmed.

Submitted for summary disposition under K.S.A. 2019 Supp. 21-6820(g) and (h).

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

PER CURIAM: Curtis Downing appeals from the district court's revocation of his
probation and imposition of his underlying sentence. This court granted Downing's
motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A
(2019 Kan. S. Ct. R. 47). Finding no error, we affirm.

Downing was convicted of possession of methamphetamine, a severity level 5
drug felony. At sentencing, the district court found Downing's criminal history
classification was B, which made his presumptive sentence imprisonment. See K.S.A.
2019 Supp. 21-6805(a) (Kansas Sentencing Guidelines Act drug offense sentencing grid);
K.S.A. 2019 Supp. 21-6809 (defining criminal history classifications based on nature and
number of prior convictions). However, the district court granted Downing's motion for
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downward dispositional departure and placed him on supervised probation for 12 months
with an underlying sentence of 36 months' imprisonment.

Downing committed several probation violations and received one two-day and
two three-day jail sanctions as a result. Downing continued to violate the conditions of
his probation by committing new crimes. The State filed a motion to revoke his
probation, and at the evidentiary hearing, Downing admitted to violating the terms of his
probation by committing three new crimes: (1) interference with a law enforcement
officer; (2) driving while a habitual violator; and (3) driving while suspended. The district
court accepted Downing's admission and found he had violated the terms of his
probation.

The district court revoked Downing's probation and ordered him to serve his full
underlying sentence. It found Downing had been given multiple opportunities for
continued probation following jail sanctions for prior violations, but "continued to
violate," and was not amenable to further probation. It further noted Downing had "a
pretty horrible criminal record" with "a 25-year criminal history," including 15
convictions for driving while suspended. The district court believed Downing was
"clearly . . . going to continue to drive," and had "pretty much made it clear [he was]
going to do what [he was] going to do."

Once the district court finds a defendant has violated the terms of probation, the
decision to revoke probation rests in the discretion of the district court. A judicial action
constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable;
(2) is based on an error of law; or (3) is based on an error of fact. State v. Mosher, 299
Kan. 1, 3, 319 P.3d 1253 (2014). Downing argues the district court erred by not imposing
an intermediate sanction. However, he acknowledges because his probation was granted
under a downward dispositional departure, the district court was not required to do so.
See K.S.A. 2019 Supp. 22-3716(c)(7)(B). Downing does not contest the sufficiency of
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the evidence underlying the finding he violated his probation, nor does he argue an error
of fact or law. Rather, he asserts "no reasonable person would have agreed with [the
district court's] decision."

Here, the district court was well within its sound discretion in revoking Downing's
probation and ordering him to serve his underlying sentence. See K.S.A. 2019 Supp. 22-
3716(c)(7)(C) (district court may revoke probation and impose underlying sentence when
defendant commits a new crime while on probation); K.S.A. 2019 Supp. 22-
3716(c)(7)(B) (district court may revoke probation without imposing intermediate
sanctions if probation is granted as a result of a downward dispositional departure).
Downing had multiple chances to change his ways and did not do so. The district court's
decision was quite reasonable based on Downing's repeated probation violations and
continued disregard for lawful orders suspending his driving privileges. Downing has
failed to show the district court abused its discretion by revoking his probation and
ordering him to serve the original sentence.

Affirmed.