State v. Gibbons

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NOT DESIGNATED FOR PUBLICATION

Nos. 115,498
115,499

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

V.

JUSTIN GIBBONS,
Appellant.



MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed April 28, 2017.
Affirmed.

Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.

Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before BRUNS, P.J., HILL and SCHROEDER, JJ.

Per Curiam: Justin Gibbons appeals the district court's revocation of his probation
and imposition of his sentence. We find no error and affirm.

In one Sedgwick County case, No. 14CR1793, Gibbons pled guilty to criminal
possession of a firearm by a convicted felon and felony theft. In a second Sedgwick
County case, No. 14CR2785, Gibbons pled guilty to possession of methamphetamine.
The court consolidated these cases.
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The district court granted Gibbons' motion for a downward dispositional departure
to probation, citing the age of Gibbons' prior person felony conviction and his
participation and success in drug treatment, as reasons for the departure. The court was
encouraged that Gibbons had voluntarily entered into treatment and had been so far
successful. But the court was concerned with the fact that Gibbons had several violations
on his presentence investigation report for the past 5 years and had a "significant"
criminal history.

The court warned that Gibbons was going to have to "follow the law clearly." The
court also warned that it had "zero tolerance" for any positive UAs for illegal drugs while
he was on probation. "If those things occur, you are in violation. I will impose the
underlying sentence." The court sentenced Gibbons to 36 months' probation with a total
underlying prison term of 52 months.

A few months later, the court issued a warrant for Gibbons' arrest based on
allegations that he had violated the conditions of his probation. The State alleged that
Gibbons had:

 failed to notify his ISO within 24 hours that he was terminated from his
employment;
 submitted a urine sample which tested positive for methamphetamine on
November 18, 2015; and
 committed the new offenses of burglary and theft as alleged in Butler
County Sheriff case No. 15-00014144 on or about November 20, 2015.

At his probation revocation hearing, Gibbons waived his right to a hearing and
admitted the violations. The court revoked his probation and ordered him to serve his
sentence. The court also found that Gibbons committed new felonies while on probation
and that the safety of the public would be jeopardized if Gibbons was placed back on
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probation because he had committed a new crime and because his last crime involved a
firearm.

On appeal, Gibbons primarily contends that the district court abused its discretion
by revoking his probation because his failure to comply was caused by his addiction and
the needs of the community would be better served if Gibbons was placed back on
probation to get treatment.

Once a probation violation has been established, the decision to revoke probation
rests within the sound discretion of the district court. State v. Skolaut, 286 Kan. 219, 227-
28, 182 P.3d 1231 (2008). 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). Gibbons bears
the burden to show an abuse of discretion. See State v. Stafford, 296 Kan. 25, 45, 290
P.3d 562 (2012).

The statute, K.S.A. 2015 Supp. 22-3716(c), provides that a sentencing court
should generally impose an intermediate sanction before ordering a probation violator to
serve his or her underlying sentence, unless certain exceptions apply. For example, the
district court need not impose any intermediate sanction if the offender "commits a new
felony or misdemeanor or absconds from supervision while the offender is on probation"
or 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. 2015 Supp. 22-3716(c)(8), (c)(9).

The court found both that Gibbons committed new felonies and that public safety
would be jeopardized if Gibbons was placed back on probation. Gibbons admitted that he
committed the new crimes. Therefore, the court was not required to impose an
intermediate sanction.
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At Gibbons' sentencing hearing, the district court granted a departure to probation
because he was in treatment for his addiction. But within 3 months of being warned by
the court that he had to remain sober and follow the law while on probation, Gibbons
used methamphetamine and committed burglary and theft. Gibbons does not point to any
errors of fact or law in the district court's decision to now revoke his probation. The
decision was not arbitrary, fanciful, or unreasonable. Rather, the court found that Gibbons
was a danger to public safety if he was placed back on probation. Gibbons had an
extensive criminal history and the court had already given him the chance to get
treatment for his addiction. But Gibbons went back to using drugs and committed new
crimes.

The district court was well within its discretion to revoke Gibbons' probation and
impose his sentence.

Affirmed.