State v. Gonzalez

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NOT DESIGNATED FOR PUBLICATION

No. 118,862

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ALEX GONZALEZ,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge. Opinion filed June 29, 2018.
Affirmed.

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

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

PER CURIAM: Alex Gonzalez appeals the district court's decision to revoke his
probation and impose his underlying prison sentence. We granted Gonzalez' motion for
summary disposition pursuant to Supreme Court Rule 7.041A (2018 Kan. S. Ct. R. 47).
The State responded and requested that this court affirm the district court's decision to
revoke probation and impose Gonzalez' underlying prison sentence. After review, we
affirm the district court.

In June 2017, Gonzalez pled guilty to one count of possession of
methamphetamine, a drug severity level 5 nonperson felony. Based on Gonzalez' criminal
history score of C, his conviction was a border box offense, meaning the disposition for
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this conviction was presumptive prison but a district court may elect to impose an
optional nonprison sentence rather than a term of imprisonment. See K.S.A. 2017 Supp.
21-6804(f), (q). On August 2, 2017, the district court imposed an underlying sentence of
28 months' imprisonment but granted Gonzalez 12 months' probation.

Subsequently, on November 28, 2017, Gonzalez stipulated to violating the terms
of his probation by committing the new crimes of possession of marijuana and possession
of paraphernalia. He also stipulated to other violations irrelevant to the resolution of
Gonzalez' appeal. In accordance with the State's recommendation, the district court
revoked Gonzalez' probation and ordered him to serve the remainder of his underlying
prison sentence.

On appeal, Gonzalez argues that the district court erred in revoking his probation
and imposing his underlying prison sentence. 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).
This discretion is limited by the intermediate sanctions as outlined in K.S.A. 2017 Supp.
22-3716. Gonzalez bears the burden to show an abuse of discretion by the district court.
State v. Rojas-Marceleno, 295 Kan. 525, 531, 285 P.3d 361 (2012).

K.S.A. 2017 Supp. 22-3716 requires that the district court impose intermediate
sanctions before revoking an offender's probation. State v. Huckey, 51 Kan. App. 2d 451,
454, 348 P.3d 997, rev. denied 302 Kan. 1015 (2015). However, there are exceptions that
permit a district court to revoke probation without having previously imposed the
statutorily required intermediate sanctions. One of these exceptions allows the district
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court to revoke probation if the offender commits a new crime while on probation. See
K.S.A. 2017 Supp. 22-3176(c)(8).

Here, Gonzalez stipulated to violating the terms of his probation when he
committed a new crime. Thus, the district court was entitled to revoke his probation and
impose his underlying prison sentence. Gonzalez fails to show that no reasonable person
would have taken the view of the district court. There was no abuse of discretion.

Affirmed.