State v. Morton

1
NOT DESIGNATED FOR PUBLICATION

No. 120,273

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DAKOTA R. MORTON,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed November 15,
2019. Affirmed.

Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before POWELL, P.J., PIERRON and ATCHESON, JJ.

PER CURIAM: Dakota R. Morton appeals the district court's revocation of his
probation and imposition of his underlying prison sentence. He claims the district court
lacked the authority to revoke his probation and abused its discretion by doing so. After a
review of the record, we disagree and affirm.

In case 17 CR 2484, Morton pled guilty to one count of aggravated escape from
custody and was sentenced to 11 months in prison, but the district court placed him on
probation from that sentence for 18 months.
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Less than one week after sentencing, the State alleged in a probation violation
warrant that Morton had violated the terms of his probation by submitting two positive
urinalysis (UA) samples, being listed as "out of place of assignment" when he failed to
return to Residential Community Corrections after job seeking, and being "declared
AWOL in Sedgwick County Sheriff's report # 18SW000488." These actions apparently
resulted in a new case, 18 CR 416, in which Morton subsequently pled guilty to
aggravated escape from custody.

The district court held a joint hearing for Morton's sentencing in his new case and
his probation violation in 17 CR 2484. Morton waived his right to an evidentiary hearing
and admitted to the violations in the probation violation warrant. On the basis of Morton's
admission, the district court revoked his probation. In arguing for reinstatement of
Morton's probation, Morton's counsel asserted that Morton had a "pretty serious drug
addiction" and wanted to enter a drug and alcohol treatment program. The State asked the
district court to impose the underlying prison sentence based on a finding that a new
crime had been committed, specifically referencing Morton's new aggravated escape
from custody conviction.

Before pronouncing its decision, the district judge remarked that Morton had
already twice failed on probation under "the highest level of supervision," residential
community corrections. While acknowledging Morton's substance abuse problem, the
district court noted that Morton had previous opportunities to seek treatment and that his
behavior on probation had been "very bad." Ultimately, the district court concluded that
"reinstatement of probation would not be in your best interest because very likely you
would commit a new crime, again, probably aggravated escape from custody, which
would be a new criminal charge. You have already committed a new offense under 18
CR 416, aggravated escape from custody." The district judge stated, "[O]n that basis, I
don't need to follow the graduated sanctions any further" and imposed the underlying
prison sentence in 17 CR 2484.
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The journal entry filed in the case reflected the district court's findings at the
hearing: that Morton's probation was revoked because he committed a new crime while
on probation and a finding of offender welfare.

Morton timely appeals.

On appeal, Morton makes two arguments. First, he argues he was denied due
process because he was provided insufficient notice that commission of a new crime
would be used as the basis to revoke his probation. Second, he argues the district court
abused its discretion when it revoked his probation and ordered him to serve his
underlying prison sentence.

Once the State has proven a violation of the conditions of probation, the
disposition of the case lies within the sound discretion of the district court, so long as that
discretion falls within the parameters of K.S.A. 2018 Supp. 22-3716. See State v. Skolaut,
286 Kan. 219, 227-28, 182 P.3d 1231 (2008). 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). Morton bears the burden of showing an abuse of
discretion. See State v. Rojas-Marceleno, 295 Kan. 525, 531, 285 P.3d 361 (2012).

K.S.A. 2018 Supp. 22-3716(c)(1) requires the district court to impose a series of
intermediate sanctions before it may revoke a defendant's probation. Even so, sometimes,
such as when a defendant commits a new crime or when the district court finds an
offender's welfare would not be best served by remaining on probation, the district court
may bypass these intermediate sanctions and revoke a defendant's probation. K.S.A. 2018
Supp. 22-3716(c)(8) and (9).

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On appeal, Morton challenges only the legal authority of the district court to
revoke his probation on the grounds he committed a new crime. He claims the probation
violation warrant did not sufficiently apprise him that commission of a new crime while
on probation could result in his probation being revoked. Yet we need not resolve that
issue because the district court revoked Morton's probation for two reasons: (1) Morton
committed a new crime; and (2) Morton's welfare would not best be served by the
imposition of an intermediate sanction. And Morton does not challenge the district court's
offender welfare finding. Therefore, we find the district court had the legal authority to
revoke Morton's probation.

As to the wisdom of the district court's decision to revoke Morton's probation, we
conclude a reasonable person could agree with the district court's judgment here. While it
is true that Morton had a drug problem that required treatment, the district court noted
that Morton had previous opportunities to get treatment and either did not take advantage
of them or failed at treatment. The district court also emphasized that Morton's
performance on probation had been "very bad" and that he had failed at the highest level
of supervision. The record also supports the district court's offender welfare findings,
which were predicated on its prediction that Morton would commit a new crime if kept
on probation, given that Morton had committed a second crime of aggravated escape
from custody while on probation for the same crime. We see no abuse of discretion in the
district court's decision to revoke Morton's probation and impose his underlying prison
sentence.

Affirmed.