State v. Loving

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NOT DESIGNATED FOR PUBLICATION

No. 119,851

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BRANDON LOVING,
Appellant.


MEMORANDUM OPINION

Appeal from Geary District Court; RYAN W. ROSAUER, judge. Opinion filed April 19, 2019.
Affirmed.

Submitted for summary disposition pursuant K.S.A. 2018 Supp. 21-6820(g) and (h).

Before ARNOLD-BURGER, C.J., PIERRON and MALONE, JJ.

PER CURIAM: Brandon Loving appeals the revocation of his probation. We
granted Loving's motion for summary disposition in lieu of briefs under Supreme Court
Rule 7.041A (2019 Kan. S. Ct. R. 47). The State has filed no response. For the reasons
stated in this opinion, we affirm the district court's judgment.

FACTUAL AND PROCEDURAL HISTORY

In February 2016, Brandon Loving pleaded no contest to felony possession of
marijuana. Because Loving struggled to remain drug free while awaiting his sentencing,
resulting in several bond revocation warrants for use of marijuana, the court continued
sentencing at least once to give Loving time to show he could remain drug free. The court
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subsequently sentenced Loving to 13 months in prison, but released him on a 12-month
term of probation.

Just four months later, the State moved to revoke Loving's probation. The State
alleged Loving violated his probation by: (1) failing to make required payments, (2) a
new arrest for possessing marijuana with intent to distribute, (3) not obtaining a drug
evaluation, and (4) failing to report contact with law enforcement. For almost two years,
the hearing on the motion to revoke Loving's probation was repeatedly continued and the
motion to revoke was amended to add new violations during the term of probation.
Additional allegations included continued use of marijuana. Loving was warned by the
district court judge during the pendency of the motion to "start taking some action" on
addressing his marijuana problems while the judge continued the hearings to see if
Loving would comply. Loving admitted to continuing to use marijuana.

Although Loving eventually stipulated to the allegations that he violated his
probation, including a conviction for possession of marijuana while he was on probation,
the district court continued the case for final disposition to give Loving an opportunity to
complete treatment. He did not. He was discharged from inpatient drug treatment due to
poor behavior, including punching a hole in a wall.

At the final disposition hearing on the State's motion to revoke Loving's probation,
the court gave a lengthy recitation of the history of the case. The court concluded that
another chance at probation would not be in Loving's best interest and would jeopardize
his welfare because he would just continue to use. The court revoked Loving's probation
and ordered him to serve his underlying sentence.




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ANALYSIS

On appeal, Loving argues the district court abused its discretion in revoking his
probation and imposing his underlying prison sentence.

Once a violation has been established, the decision to revoke probation is within
the sound 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, 957, 398 P.3d 856 (2017). This discretion is limited by the intermediate
sanctions as outlined in K.S.A. 2018 Supp. 22-3716. Loving bears the burden to show an
abuse of discretion by the district court. See State v. Rojas-Marceleno, 295 Kan. 525,
531, 285 P.3d 361 (2012).

In most circumstances, the district court is required to impose intermediate
sanctions before revoking an offender's probation. K.S.A. 2018 Supp. 22-3716. See State
v. Huckey, 51 Kan. App. 2d 451, 454, 348 P.3d 997, rev. denied 302 Kan. 1015 (2015).
However, there are limited statutory exceptions that permit a district court to revoke
probation without having previously imposed the statutorily required intermediate
sanctions. One such exception is when the court makes particular findings that the
welfare of the offender will not be served by a graduated sanction. K.S.A. 2018 Supp. 22-
3716(c)(9)(A). This was the exception relied upon by the district court to revoke Loving's
probation and order him to serve his underlying prison sentence.

The district court did not abuse its discretion by revoking Loving's probation in
this case and bypassing any intermediate sanctions. The decision was clearly not based
upon an error of law or fact. Furthermore, we cannot find that no reasonable person
would have taken the view adopted by the trial court. The district court judge discussed
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Loving's lengthy history of failing to abide with the rules of his probation and his
inability to remain drug free. He explained with sufficient particularity that intermediate
sanctions would not serve Loving's welfare due to his repeated and continued failure to
address his drug issues as required by his probation.

Affirmed.