State v. Jones

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NOT DESIGNATED FOR PUBLICATION

No. 116,617

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MICAH A. JONES,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed October
27, 2017. Affirmed.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before BRUNS, P.J., MCANANY, J., and HEBERT, S.J.

PER CURIAM: Micah A. Jones appeals from the revocation of his probation,
alleging that the district court failed to consider his motion to modify the conditions of
his bond from assignment to work release to assignment on house arrest. Jones has failed
to provide any support in the record establishing that the district court abused its
discretion. The order of revocation is affirmed.




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Factual and Procedural Background

In September 2015, Jones entered a plea of guilty to 11 criminal charges in two
consolidated Sedgwick County cases: one count of burglary; three counts of criminal
damage to property; one count of theft; four counts of violation of a protective order; one
count of unlawful discharge of a firearm; and one count of possession of marijuana. He
was sentenced to an underlying prison term of 22 months, a consecutive underlying jail
term of 24 months, and granted probation for 24 months.

In May 2016, Jones' probation officer issued a warrant for his arrest for
committing the crime of violating a protection from abuse (PFA) order and for failing to
report law enforcement contact to the probation office within 24 hours. A hearing was
scheduled for June 2, 2016. The June 2nd probation violation hearing was convened as
scheduled, but set over for a July 15th evidentiary hearing.

On June 1, 2016, Jones filed a motion to modify his bond and/or allow work
release; he also requested that the court consider allowing house arrest. The motion was
scheduled for hearing on June 3rd. However, since the district judge had already
authorized work release when he signed the warrant and set bond on May 20, 2016,
Jones' July 1st motion was withdrawn, but on July 7th he filed a new motion to modify
work release and authorize house arrest. This matter was scheduled for hearing on July
15th.

A hearing regarding Jones' probation violation was held on July 15, 2016.
Although there is apparently a minute sheet referring to this hearing, the record on appeal
does not contain a transcript of this hearing. Some information with reference to the July
15th hearing is made in the transcript of a subsequent hearing on September 1, 2016.

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It appears that at the July 15th hearing, Jones chose to waive his right to an
evidentiary hearing and admit to the allegations in the warrant. Both parties apparently
made recommendations, but the court had some questions about the violation of a PFA
order that constituted Jones alleged new crime. That matter was still pending in Maize
Municipal Court and Jones was scheduled for trial on August 4, 2016. The judge also
wanted additional information regarding Jones' diagnoses and treatments through
COMCARE. The evidentiary hearing was continued to September 1, 2016.

Prior to the September 1st hearing, the district court received the Maize police
reports about the allegation Jones violated a PFA and information pertinent to Jones'
treatment through COMCARE. The court was advised that Jones pled guilty to the PFA
violation at his August 4th court date and was given a suspended sentence.

At the September 1st hearing, the district judge announced that he intended to
issue his decision on the probation violation. He heard testimony from Jones' probation
officer, in which she stated that while she was willing to continue supervising Jones, she
was "hesitant for there not to be consequences for the violations that occurred, based on
the nature of the violation. I think it is a serious issue." The probation officer left the
decision to the court's discretion.

The district judge referenced the recommendations the parties made at the July
15th hearing, but he did not state what they were and asked what additional information
the parties wanted to present. Jones' defense counsel offered that when Jones admitted to
the PFA violation in Maize, he was fined $100 and paid it the same day. Jones' attorney
conceded Jones' criminal history but argued this was his first violation on this case. Jones'
attorney specifically requested the district court either reinstate Jones to court services
with his probation officer or refer him to community corrections. He did not present any
information or make any argument in favor of house arrest. When the district judge asked
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Jones if there was anything he wanted to tell the court, Jones stated: "I have no further
information. I just apologize."

The district judge then spoke to Jones at length regarding his concerns about
Jones' conduct, the underlying crimes of conviction, his criminal history, and his history
of not following court orders, protection from abuse orders, or the requirements of his
probation. The district judge found that it "makes a farce" out of the proceedings to say
Jones was amenable to probation. The district court ruled under K.S.A. 2016 Supp. 22-
3716 that Jones committed a new crime and also made a secondary public safety finding.

The district court proceeded to revoke Jones' probation and impose the underlying
sentence. The court also noted that Jones' pending motion for house arrest was moot due
to the revocation. Jones filed a timely notice of appeal.

No Abuse of Discretion Established

This court reviews a district court's revocation of probation for an abuse of
discretion. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). Judicial
discretion is abused when the court acts (1) arbitrarily, fancifully, or unreasonably; (2)
based on an error of law; or (3) based on an error of fact. State v. Ward, 292 Kan. 541,
550, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012). The party asserting error
bears the burden of proving an abuse of discretion. State v. Rojas-Marceleno, 295 Kan.
525, 531, 285 P.3d 361 (2012).

Recent statutory amendments limit the discretion of district courts when imposing
sanctions for probation violations so that, typically, a district court must impose a series
of graduated sanctions before revoking a defendant's probation and ordering a violator to
serve his or her underlying sentence. See K.S.A. 2016 Supp. 22-3716(c)(1). However, in
the event that an offender commits a new crime while on probation or the court finds with
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particularity that the safety of members of the public will be jeopardized by imposing an
intermediate sanction, the district court may revoke the offender's probation and require
the offender to serve the underlying sentence, or any lesser sentence as the court sees fit,
regardless of whether less severe sanctions have been imposed. K.S.A. 2016 Supp. 22-
3716(c)(8)(A), (c)(9).

Jones admitted he violated his probation by not reporting within 24 hours his
contact with law enforcement associated with his new crime, and he also pleaded guilty
to the PFA violation in municipal court. He neither contests the district judge's findings
that he committed a new crime, nor does he contest the district judge's particularized
findings and conclusion that the safety of the public would be jeopardized by his
continuation on probation. An issue not briefed by the appellant is deemed waived or
abandoned. State v. Williams, 303 Kan. 750, 758, 368 P.3d 1065 (2016).

Jones sole argument on appeal is that the district court abused its discretion when
it did not consider his motion to modify his assignment to work release and authorize
house arrest. Again, Jones bears the burden of proving an abuse of discretion. Rojas-
Marceleno, 295 Kan. at 531. The available record demonstrates that Jones and his
attorney were given the opportunity to speak and make recommendations; neither
recommended or requested he be placed on house arrest, and neither brought up the
motion to modify his assignment to work release to house arrest.

The available record demonstrates that a hearing on the motion occurred initially
on July 15, 2016, and was denied. It is Jones' burden to designate a record to support his
claims on appeal. Kansas Supreme Court Rule 6.02(a)(4) (2017 Kan. S. Ct. R. 34).
Without the transcript from the July 15th hearing, Jones cannot establish that the district
court failed to hear, consider, and make findings on his motion prior to executing the
motion minutes sheet. Perhaps more importantly, Jones presents no suggestion or
argument as to how he was prejudiced by the court's alleged failure to consider a motion
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seeking to modify his bond pending final disposition. Without a record to affirmatively
show prejudicial error, we must presume that the trial court's actions were proper. State v.
Goodson, 281 Kan. 913, 919, 135 P.3d 1116 (2006); see State v. Paul, 285 Kan. 658,
670, 175 P.3d 840 (2008).

There is nothing in the record to suggest that the district court abused its discretion
by revoking Jones' probation. Having revoked the probation, modification of work
release to house arrest pending that disposition was obviously moot. The order of
revocation is affirmed.

Affirmed.