State v. Lopez

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NOT DESIGNATED FOR PUBLICATION

No. 119,398

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

GABRIELA G. LOPEZ,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; TYLER J. ROUSH, judge. Opinion filed January 4, 2019.
Affirmed.

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

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

PER CURIAM: Gabriela G. Lopez appeals the district court's decision revoking her
probation and ordering her to serve her underlying prison sentence. We granted Lopez'
motion for summary disposition under Kansas Supreme Court Rule 7.041A (2018 Kan.
S. Ct. R. 47). The State has responded, and it requests that the district court's judgment be
affirmed.

On July 10, 2017, Lopez pled guilty to one count of aggravated assault with a
deadly weapon. On August 15, 2017, the district court sentenced Lopez to 12 months in
prison but granted probation for a term of 24 months.

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On March 14, 2018, Lopez admitted to violating the conditions of her probation
by, among other things, committing new crimes of driving while suspended, interference
with law enforcement by obstruction, possession of drug paraphernalia, and a cracked
windshield as alleged in Wichita Police Department case 18C956. Although Lopez
requested a quick dip in jail and another chance at probation, the district court denied the
request, revoking Lopez' probation and ordering her to serve her original sentence.

On appeal, Lopez claims the district court abused its discretion by denying her
request for a quick dip and continued probation. In support of her claim, Lopez argues
intermediate sanctions remained a viable alternative. Notwithstanding her argument,
Lopez admits the district court could bypass intermediate sanctions because she
committed a new offense while on probation. See K.S.A. 2017 Supp. 22-3716(c)(8)(A)
(district court does not have to impose intermediate sanction if offender commits new
felony or misdemeanor while offender is on probation).

The procedure for revoking a defendant's probation is governed by K.S.A. 2017
Supp. 22-3716. Generally, once there has been evidence of a violation of the conditions
of probation, the decision to revoke probation rests in the district court's sound discretion.
State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). An abuse of discretion
occurs when judicial action is arbitrary, fanciful, or unreasonable; is based on an error of
law; or is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
The party asserting the district court abused its discretion bears the burden of showing
such an abuse of discretion. State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).

In this case, the district court revoked Lopez' probation and imposed her original
prison sentence after finding that she had committed new crimes while on probation. As
Lopez acknowledges, the district court was not legally required to impose an intermediate
sanction because she committed a new offense while on probation. See K.S.A. 2017
Supp. 22-3716(c)(8)(A). Given the facts presented and the applicable law, there simply is
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no evidence to show that the district court's decision to revoke Lopez' probation was
arbitrary, fanciful, or unreasonable, or based on an error of fact or law; thus, we find the
district court did not abuse its discretion by revoking Lopez' probation and ordering her
to serve her underlying prison sentence.

Affirmed.