State v. Long

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NOT DESIGNATED FOR PUBLICATION

No. 119,526

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BRANDON N. LONG,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed June 28,
2019. Affirmed.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

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

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

PER CURIAM: The district court revoked Brandon N. Long's probation after
various probation violations. He moved the court to modify his underlying sentence to
have it run concurrently with his other pending case out of Wichita, but the district court
denied that motion and imposed the original underlying sentence. Long appeals but we
find no error.



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Factual and Procedural Background

Long pleaded no contest to two counts of criminal threat and one count of
violation of a protective order. Long agreed his criminal history score was B. At
sentencing, the district court granted a downward dispositional departure and ordered
Long to serve 12 months of probation with an underlying prison sentence of 20 months.
The district court ordered that case to run consecutive to any other cases, including an
ongoing case from Wichita.

Long was later arrested for probation violations. He waived his right to an
evidentiary hearing on the violations and admitted to testing positive for THC and failing
to attend drug and alcohol treatment in violation of his probation. The district court found
that it was in Long's best interest to serve his underlying sentence, noting it was not
required to impose intermediate sanctions because Long had been granted probation as a
result of a dispositional departure.

Defense counsel moved the court to modify Long's sentence—either to allow it to
run concurrent to his pending case or to impose two felony counts concurrent to one
another rather than consecutive. The district court denied that motion. Long appeals.

Discussion

As a preliminary matter, the State argues that this issue is moot. After reading the
briefs, we issued a show cause order. Long responded to our show cause order and
argued that we should retain his case. We choose to reach the merits of Long's appeal.

Long does not argue that the district court abused its discretion in revoking his
probation. Instead he claims that the district court abused its discretion by denying his
request to run his prison sentence concurrent to his sentence in 16 CR 812. We review
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this decision for an abuse of discretion. State v. Reeves, 54 Kan. App. 2d 644, 648, 403
P.3d 655, rev. denied 307 Kan. 992 (2017). A judicial action constitutes an abuse of
discretion if (1) no reasonable person would take the view adopted by the trial court; (2)
it is based on an error of law; or (3) it is based on an error of fact. State v. Marshall, 303
Kan. 438, 445, 362 P.3d 587 (2015).

Long argues that modifying his underlying sentence to allow his sentences to run
concurrent would serve the purposes of the Kansas Sentencing Guidelines Act (KSGA).
See State v. Waggoner, 51 Kan. App. 2d 144, 155, 343 P.3d 530 (2015); (citing State v.
Favela, 259 Kan. 215, 233-34, 911 P.2d 792 [1996] and listing principles and legislative
purposes of the KSGA). Long argues imposing a shorter prison sentence would have
better served the purposes of the KSGA for two reasons: (1) a shorter prison sentence
would allow him to return to the community more quickly, allowing him to receive social
security disability benefits and to receive treatment to manage his Asperger Syndrome
and deal with his "family-related stress;" and (2) a shorter prison sentence "would have
better served the goal of reducing prison overcrowding." He argues that "no reasonable
person would have denied defense counsel's request to run Mr. Long's prison sentence
concurrent to his prison sentence in 16CR812" and thus that the district court abused its
discretion when it imposed the original underlying sentence instead of a modified prison
sentence.

We disagree. The district court did not abuse its discretion when it denied Long's
request to run his sentence concurrent to his sentence in another case. Upon revoking
probation, the district court can order the defendant serve the sentence originally imposed
or any lesser sentence. K.S.A. 2018 Supp. 22-3716(c)(1)(E). The district court ordered
Long serve the sentence originally imposed—it revoked Long's probation, denied his
request to modify his sentence to allow it to run concurrent to his other case, and ordered
him to serve his underlying sentence of 20 months consecutive to any other sentence. We
believe other reasonable persons would have done the same. The district court did not
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abuse its discretion in denying Long's request for a lesser sentence when it revoked his
probation.

Affirmed.