State v. Grimes

1

NOT DESIGNATED FOR PUBLICATION

Nos. 117,158
117,159

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CALVIN GRIMES,
Appellant.

MEMORANDUM OPINION


Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed March 9,
2018. Affirmed.

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

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before BUSER, P.J., PIERRON and LEBEN, JJ.

PER CURIAM: Calvin Grimes pled guilty to two counts of burglary, two counts of
theft, and one count of possession of marijuana in case No. 15CR3133. The district court
sentenced him to 24 months' probation with an underlying 26-month prison sentence.
Later, in case No. 16CR1355, Grimes pled guilty to misdemeanor theft and the court
sentenced him to a one-year term probation with an underlying 12-month jail sentence to
run consecutive to 15CR3133. The district court revoked his probation and imposed the
total 38-month sentence. Grimes timely appeals. We affirm.

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On November 3, 2015, the State filed case No. 15CR3133 charging Grimes with
two counts of burglary, two counts of theft, and one count of possession of
methamphetamine, all of which were felonies. On November 17, 2015, Grimes and the
State submitted a plea agreement to the district court. In exchange for his pleading guilty
as charged, the State agreed to recommend the low number in the sentence grid box,
request that the sentences run concurrently, and recommend that Grimes receive
probation. The State also agreed not to pursue charges in the Sedgwick County Sheriff's
case No. 15s011413 and Grimes agreed to pay restitution on all charges, including the
Sheriff's case.

Grimes was released from jail on his own recognizance with instructions to report
to pretrial services the following day. He was required to remain drug and alcohol free
and submit to random breath or urine tests. On December 15, 2015, the district court
issued a bench warrant following allegations that Grimes had violated the conditions of
pretrial services by submitting a urine sample that tested positive for meth/amphetamines
and THC. The sample was confirmed positive for meth/amphetamines on December 14,
2015.

As agreed, at sentencing, the State recommended the low box number for all
counts: 11 months for the burglaries, 5 months for the thefts, and 10 months for
possession of methamphetamine. The State further recommended that Grimes be released
on probation after serving 60 days in jail for violating the terms of pretrial services.
Grimes requested that the district court follow the plea agreement. The district court
stated that there was no way it was going to grant the plea recommendation, noting that
Grimes violated the conditions of pretrial services in only three weeks.

The district court sentenced Grimes to 13 months, the aggravated sentence, for
both burglaries, to run consecutively, giving him a 26-month underlying sentence. It
further sentenced him to 6 months for each theft charge and 11 months for possession of
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methamphetamines. The district court granted Grimes a 24-month term of probation
beginning with 60 days in work release. Work release was not a punishment but an
opportunity for stability before getting out of jail as the court was concerned about
Grimes' substance abuse issues.

Grimes completed work release on March 21, 2016, but he failed to report to
probation intake as directed. The district court issued a bench warrant on April 1, 2016.
He was arrested on May 3, 2016. On May 17, 2016, the State filed case No. 16CR1355,
charging Grimes with a misdemeanor theft that had occurred on October 15, 2015. At his
probation violation hearing, Grimes admitted to the allegation that he did not report to his
probation officer upon release from work release. His probation officer recommended
reinstatement of his probation. The State recommended that he remain in custody until a
bed was available at the community corrections residential center. Grimes, however,
requested a two-day "quick dip" then reinstatement of his probation so he could live with
his father who had a job lined up for him. The court asked Grimes about his whereabouts
from March 21, 2016, through May 3, 2016, and he replied he was in the streets running
around but he was now ready to get his life together. The court pointed out that Grimes
had said that same thing four months earlier at sentencing. Grimes was ordered to
complete a two-day quick dip followed by up to a 60-day sanction, during which he could
be released upon availability of residential bed space. The court noted that Grimes' track
record was horrible and he had shown he did not go where he was supposed to when he
was not in custody.

The district court then accepted Grimes' guilty plea to misdemeanor theft in No.
16CR1355. The parties agreed to a 12-month underlying sentence with a one-year
probation term. The No. 16CR1355 sentence was to run consecutive to the No.
15CR3133 sentence. The court further ordered Grimes to pay $500 in restitution.

4

Grimes went from the county jail to the community corrections residential center
on May 26, 2016. On July 5, 2016, he signed out of the residential center and failed to
return. The court issued a warrant. Grimes was arrested on August 12, 2016. The State
subsequently charged him with aggravated escape from custody in case No. 16CR2129.

On October 5, 2016, Grimes admitted to the probation violation. In giving its
recommendation, the State pointed out that Grimes had been given several opportunities
but continued violating the different levels of supervision. The State asked the court to
make findings that Grimes had committed a new crime and impose the underlying
sentence. However, Grimes requested a 180-day "soak" with the Kansas Department of
Corrections (KDOC) because he had only previously received a quick dip. Grimes
believed that with his losing battle against addiction, the shock time in KDOC custody
would help him change his path. The district court made an initial finding that Grimes
had committed a new crime—escape from custody—and revoked his probation.

The district court also made secondary findings for the sake of public safety and
Grimes' welfare regarding his nonamenability to probation and the inability to deal with
his addiction. The court found that Grimes continued violating his probation by not
following the rules and structures in place. The court considered the 180-day soak but
declined because KDOC tended to cut sanction time in half. Further, because Grimes had
a hold on him for case No. 16CR2129, the sanction would likely be served in the county
jail, which would defeat the legislative purpose of shock value of incarceration in the
penitentiary. For KDOC to take Grimes into its custody for the sanction, the court would
have had to reduce the bond for No. 16CR2129, which it found was contrary to the
interest of public safety and Grimes' welfare. Further, the district court noted that for the
period of incarceration, the court would know his whereabouts and he would not have
access to drugs. Grimes timely appeals the revocation of his probation and imposition of
his sentences.

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Revocation determinations typically involve a retrospective factual question of
whether a probationer violated a condition of probation and a discretionary determination
of whether the violation warrants revocation. State v. Skolaut, 286 Kan. 219, 227, 182
P.3d 1231 (2008) (quoting Black v. Romano, 471 U.S. 606, 611, 105 S. Ct. 2254, 85 L.
Ed. 2d 636 [1985]). Revocation determinations rest within the sound discretion of the
district court. State v. McFeeters, 52 Kan. App. 2d 45, 47, 362 P.3d 603 (2015). Judicial
discretion is abused if judicial action is (1) arbitrary, fanciful, or unreasonable; (2) based
on an error of law; or (3) based on an error of fact. State v. Davisson, 303 Kan. 1062,
1065, 370 P.3d 423 (2016). A district court acts arbitrarily, fancifully, or unreasonably
when it adopts a view that no reasonable person would adopt. Davisson, 303 Kan. at
1065. The movant bears the burden of proving the abuse of discretion. 303 Kan. at 1065.
Whether a district court properly imposed a sentence after a probation revocation is a
question of law, over which we exercise de novo review. McFeeters, 52 Kan. App. 2d at
47-48.

The district court revoked Grimes' probation and imposed his underlying sentences
under K.S.A. 2017 Supp. 22-3716(c)(8) and (9). Its initial findings were made in
accordance with K.S.A. 2017 Supp. 22-3716(c)(8)(A), which permits the court to revoke
an offender's probation without the use of graduated sanctions when the offender
commits a new felony or misdemeanor. The court's secondary findings were made in
accordance with K.S.A. 2017 Supp. 22-3716(c)(9), which permits probation revocation
without use of graduated sanctions if the court finds that use of sanctions will either
jeopardize the safety of the public or the welfare of the offender will not be served by the
sanction.

Grimes contends the district court failed to make sufficient findings as to how
revocation and imposition of his underlying sentences would serve the public interest or
the purposes of sentencing. He alleges that because the court summarily dismissed his
arguments for graduated sanctions, the imposition of his sentences was unreasonable.
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Grimes asserts that his drug addiction fueled his behaviors, and without rehabilitative
services he is unlikely to become a productive member of society upon release. Because
of Grimes' need for substance abuse treatment, which is most effectively provided while
on probation, he contends the district court's revocation and imposition of his sentences
was unreasonable.

K.S.A. 2017 Supp. 22-3716(c)(8)(A)

K.S.A. 2017 Supp. 22-3716(c)(8)(A) permits revocation upon a finding that the
offender committed a new felony or misdemeanor. Violations of probation must be
established by a preponderance of the evidence. See State v. Lloyd, 52 Kan. App. 2d 780,
782, 375 P.3d 1013 (2016) (quoting State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d
1191 [2006]). A preponderance of the evidence exists when the evidence shows that the
violation is more likely true than not. Lloyd, 52 Kan. App. 2d at 782. When the act that
violated the condition of probation is a crime, revocation is proper even if the offender is
never charged or convicted. See State v. Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.3d
844 (2007).

Grimes admitted that on July 5, 2016, he signed out of the community corrections
residential center and failed to return. Because of his pending charges, his admission was
for the sake of the probation violation only. His admission was sufficient for the finding
by a preponderance of the evidence that he had violated his probation. Further, the
actions to which he admitted constituted the basis for the crime of aggravated escape
from custody, which he had been charged with in case No. 16CR2129. Conviction is not
necessary for the district court's finding by a preponderance of the evidence. With such a
finding, the court could revoke Grimes' probation under K.S.A. 2017 Supp. 22-
3716(c)(8)(A) with no graduated sanctions previously imposed. The district court's
findings were sufficient to support the revocation of Grimes' probation and imposition of
his sentences.
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K.S.A. 2017 Supp. 22-3716(c)(9)

For a district court to revoke probation under K.S.A. 2017 Supp. 22-3716(c)(9), it
must make findings, with particularity, as to why sanctions will jeopardize the safety of
the community or why sanctions will not serve the welfare of the offender. The court's
findings must be "distinct rather than general, with exactitude of detail, especially in
description or stated with attention to or concern with details." State v. Huskey, 17 Kan.
App. 2d 237, Syl. ¶ 2, 834 P.2d 1371 (1992). "[T]he district court must state the
connection between the reasons for revoking the defendant's probation and the danger the
defendant poses to the defendant's welfare or to the public safety if he or she remains on
probation." State v. Owens, No. 117,030, 2018 WL 560951, at *2 (Kan. App. 2018)
(unpublished opinion) (citing State v. Miller, 32 Kan. App. 2d 1099, 1102-03, 95 P.3d
127 [2004]).


Here, the district court made secondary findings that continued probation would
jeopardize the safety of the community and was contrary to Grimes' welfare. In making
its findings, the court briefly reviewed the significant events of the case, noting that this
violation was his third in eight months resulting from his refusal to follow the rules and
structure of probation. The court further noted that with the violations that resulted in the
issuance of warrants, Grimes remained on warrant status for approximately one month.

The district court relied on Grimes' inability to deal with his substance abuse
issues and continued violations as the reasons for the risk to the community. The court
noted Grimes' "history of not remaining where he needed to be" was part of the finding of
his being a threat to the safety of the community. Further, even though lowering the bond
for No. 16CR2129 was the only way for the 180-day soak to take place in KDOC
custody, the court found that doing so would be a risk to public safety. The justification
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for public safety was too general; it lacked particularity. The district court never stated
the connection between Grimes' probation violations and risk to the community.

However, the district court detailed the reasons why continued sanctions would
not serve Grimes' welfare. The court pointed out that Grimes previously related his
ongoing issues to his addiction to methamphetamine and marijuana as well as issues in
his personal life. Grimes had not dealt with his addiction issues while on probation. The
court sentenced him to a 60-day sanction in the work release program, not as a
punishment but as a chance for him to succeed. It stated work release would give him the
stability he needed because he did not have much of a support structure. Though he was
successful in the program, he failed to report to his probation officer upon release.
Throughout the different levels of supervision, Grimes had demonstrated an inability to
obey the rules, structure, and reporting requirements.

The district court had considered the 180-day soak in KDOC custody, but it
declined because Grimes would not actually serve the time in KDOC. Because the time
would not be served in KDOC, there would be no actual shock value. The court was
further concerned that KDOC had the ability and tendency to cut sanction times in half.
Ultimately, the court reasoned that revocation was not necessarily punitive. It was in
Grimes' best interest because he blamed all of his recent problems to drug addiction and,
if nothing else, incarceration would keep him away from those drugs. The 26-month
sentence in KDOC custody was to be served first and the 12-month jail sentence after.
The court stated that it would consider work release again when Grimes returned to the
county jail because he had previously been successful in the program. The district court
made sufficient findings as to why further sanctions were contrary to Grimes' welfare in
accordance with K.S.A. 2017 Supp. 22-3716(c)(9).

Affirmed.