State v. Ervin

1

NOT DESIGNATED FOR PUBLICATION

No. 119,086

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

FRANK CLIFFORD ERVIN JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed
December 7, 2018. Affirmed in part and dismissed in part.

Submitted for summary disposition pursuant to K.S.A. 2017 Supp. 21-6820(g) and (h).

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

PER CURIAM: Frank Clifford Ervin Jr. appeals the district court's decision
revoking his probation and ordering him to serve his underlying prison sentence. We
granted Ervin's motion for summary disposition under Kansas Supreme Court Rule
7.041A (2018 Kan. S. Ct. R. 47). The State has responded and requested that the district
court's judgment be affirmed.

On September 11, 2017, Ervin pled guilty to one count of possession of
methamphetamine. On October 26, 2017, the district court sentenced Ervin to 30 months'
imprisonment but granted probation for a term of 12 months. Ervin did not appeal his
sentence.

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On February 9, 2018, Ervin admitted to violating the conditions of his probation
by committing new crimes of driving under the influence and possession of drugs. Ervin
requested another chance at probation; but citing the fact that he had committed new
crimes within five days of his sentencing, the district court revoked Ervin's probation and
ordered him to serve his underlying prison sentence. The district court also found that
public safety would be jeopardized by continuing probation because Ervin was involved
in a serious traffic accident on October 30, 2017, while intoxicated. Finally, the district
court found that Ervin's welfare would not be served by continuing probation because
previous prison and jail sanctions had not served as a deterrent to his criminal behavior.
Ervin timely appealed the probation revocation.

On appeal, Ervin claims the district court "abused its discretion in denying [his]
request for an alternative disposition to the underlying prison sentence because sanctions
remained a viable alternative." But Ervin admits the district court could bypass
intermediate sanctions because he committed a new offense while on probation and
because of the district court's public safety and offender welfare findings.

The procedure for revoking a defendant's probation is governed by K.S.A. 2017
Supp. 22-3716. Generally, once there has been evidence of a violation of the conditions
of probation, the decision to revoke probation rests in the district court's sound discretion.
State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). An abuse of discretion
occurs when judicial action is arbitrary, fanciful, or unreasonable; is based on an error of
law; or is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
The party asserting the district court abused its discretion bears the burden of showing
such an abuse of discretion. State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012). A
district court abuses its discretion by committing an error of law in the application of
K.S.A. 2017 Supp. 22-3716 when revoking a defendant's probation. See State v. Still, No.
112,928, 2015 WL 4588297, at *1 (Kan. App. 2015) (unpublished opinion).

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Here, the district court revoked Ervin's probation after finding that he had
committed new crimes while on probation. As a result, the district court did not have to
impose an intermediate sanction in this instance. See K.S.A. 2017 Supp. 22-
3716(c)(8)(A). The district court also found that the safety of members of the public
would be jeopardized and that Ervin's welfare would not be served by imposing an
intermediate sanction. See K.S.A. 2017 Supp. 22-3716(c)(9)(A). Ervin does not challenge
the sufficiency of these findings on appeal. The district court's decision to revoke Ervin's
probation was not arbitrary, fanciful, or unreasonable, and it was not based on an error of
fact or law. Ervin has failed to show that the district court abused its discretion by
revoking his probation and ordering him to serve his underlying prison sentence.

Finally, Ervin claims the district court "erred in imposing a greater penalty [based
on his criminal history score] that was not charged in the complaint and proven to a jury
beyond a reasonable doubt." But Ervin did not timely appeal his original sentence, which
was imposed on October 26, 2017. See K.S.A. 2107 Supp. 22-3608(c); State v. Inkelaar,
38 Kan. App. 2d 312, 317-18, 164 P.3d 844 (2007) (holding that defendant's notice of
appeal was timely only as to his probation revocation and not as to his original sentence),
rev. denied 286 Kan. 1183 (2008). Because Ervin did not timely appeal his sentence, this
court lacks jurisdiction to address his sentencing issue. But even if we had jurisdiction to
address the issue, we note that our Supreme Court has resolved this issue contrary to
Ervin's position in State v. Ivory, 273 Kan. 44, 46-47, 41 P.3d 781 (2002).

Affirmed in part and dismissed in part.