State v. Mitchell

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NOT DESIGNATED FOR PUBLICATION

No. 116,090

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

FRED D. MITCHELL,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Opinion filed September 1,
2017. Affirmed.

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

Michael L. Fessinger, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before HILL, P.J., ATCHESON and SCHROEDER, JJ.

PER CURIAM: Fred D. Mitchell appeals, claiming the revocation of his probation
by the district court was an abuse of discretion. Upon review of the file, and with
Mitchell's multiple failures while on probation, we observe no abuse of discretion by the
district court. Affirmed.




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FACTS

The facts of Mitchell's jury trial conviction are not relevant to this appeal. Mitchell
was sentenced to 54 months' imprisonment, suspended to 36 months' probation. Mitchell
did not do well on probation.

Though Mitchell tested positive for marijuana and PCP during his probation intake
on February 11, 2015, his probation officer chose not to sanction him. On June 26, 2015,
Mitchell again tested positive for marijuana and PCP. He served a 72-hour sanction.
Mitchell also tested positive for marijuana and PCP on August 6, 2015. At the revocation
hearing, his probation was revoked and he was ordered to serve a 120-day sanction in the
Kansas Department of Corrections.

On December 31, 2015, the State alleged Mitchell violated the terms of his
probation again. It alleged he tested positive for PCP on December 16, 2015, and
Mitchell admitted to using PCP on December 14, 2015. At the probation revocation
hearing, Mitchell once again admitted the violation. The State requested Mitchell's
original sentence be imposed. Mitchell requested reinstatement of his probation so he
could receive inpatient substance abuse treatment. The district court noted Mitchell was a
documented gang member and had repeatedly violated his probation. The district court
revoked Mitchell's probation. Mitchell requested a downward modification of sentence,
but the district court imposed Mitchell's original sentence of 54 months' imprisonment.

Mitchell appealed.

ANALYSIS

Unless otherwise required by law, probation is a privilege, not a matter of right.
State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). A district court's decision to
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revoke probation involves two steps. The district court must first determine whether the
probationer has violated a condition of probation, and if a probation violation occurred,
the district court must determine whether the violation warrants revocation of probation.
State v. Skolaut, 286 Kan. 219, 227, 182 P.3d 1231 (2008). Here, Mitchell admitted he
violated his probation.

Mitchell argues the district court abused its discretion by imposing his original
sentence. A district court's decision to revoke probation will not be overturned absent an
abuse of discretion. Skolaut, 286 Kan. at 227-28. A district court abuses its discretion if
its judicial action is arbitrary, fanciful, or unreasonable; is based on an error of law; or is
based on an error of fact. See State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).
The party asserting the trial court abused its discretion bears the burden of showing an
abuse of discretion. State v. Huckey, 51 Kan. App. 2d 451, 454, 348 P.3d 997, rev. denied
302 Kan. 1015 (2015).

Mitchell argues the district court abused its discretion because its decision to
impose his underlying sentence was unreasonable. He argues his probation violations
resulted from his drug usage indicating a drug problem and his probation officer
recommended inpatient drug treatment.

The State contends the district court did not abuse its discretion because Mitchell
"habitually" violated his probation. It also contends all of Mitchell's probation violations
were related to his original offense—possession of marijuana with the intent to sell. The
State argues probation was not practicable and revocation of probation was not an abuse
of discretion.

Mitchell continued to use drugs throughout his probation. He violated his
probation multiple times in 13 months and had already served 3-day and 120-day
intermediate sanctions. Mitchell showed an unwillingness to comply with the district
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court's orders. Given the fact Mitchell has already served two intermediate sanctions, the
decision to revoke Mitchell's probation was not arbitrary, fanciful, unreasonable, or based
on an error of law or fact. The district court did not abuse its discretion in ordering
Mitchell to serve his underlying sentence.

Affirmed.