State v. Newman

NOT DESIGNATED FOR PUBLICATION

No. 116,222

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SHELLI NEWMAN,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; DOUGLAS R. ROTH, judge. Opinion filed July 21, 2017.
Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2016 Supp. 21-6820(g) and (h).

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

LEBEN, J.: Shelli Newman appeals the district court's decision to revoke her
probation and require that she serve her underlying prison sentence. She contends that the
district court abused its discretion by sending her to prison rather than giving her another
chance on probation.

But Newman fled from her probation officer to avoid going to jail after she tested
positive for drugs, and Kansas law allows a judge to revoke probation and impose the
underlying prison sentence—without further chances on probation—when the offender
"absconds" from probation. See K.S.A. 2016 Supp. 22-3716(c)(8). What Hurst did
represents the core meaning of absconding—departing suddenly, especially to avoid
arrest. See State v. Huckey, 51 Kan. App. 2d 451, Syl. ¶ 5, 348 P.3d 997 (2015). We
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therefore find no error in the district court's decision to revoke Newman's probation and
require that she serve her prison sentence.

Newman was convicted of felony theft, a felony because she had been convicted
of two other thefts within 5 years. See K.S.A. 2016 Supp. 21-5801(b)(6). The district
court sentenced her to serve a 12-month probation with an underlying 7-month prison
sentence to be served if she was unsuccessful on probation.

Newman admitted at her sentencing that she had used methamphetamines only a
week before, and the court ordered as part of her probation conditions that she obtain a
drug-and-alcohol evaluation, that she not use illegal drugs, and that she submit to drug
testing when requested by her probation officer. The court also ordered that Newman
have a drug test that day to confirm her statement that she hadn't used methamphetamines
for the past week.

She didn't report for that drug test, and when she was tested a few days later she
tested positive for methamphetamine and amphetamines. At a hearing, she admitted
violating her probation. The court reinstated probation and gave her a sanction of 3 days
in jail. The court said that she could schedule the 3-day period at her convenience if she
tested clean for drugs that day; if she tested positive, however, the court ordered that she
begin the 3-day jail sanction immediately. She told the court she would have a clean test
result.

Instead, she tested positive that day for methamphetamines and amphetamines.
But she did not go to jail; she simply walked out. Newman admitted at a hearing that she
had violated her probation again, this time by failing to serve the 3-day jail sanction, by
failing to refrain from drug use, and by testing positive for drug use.

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Her probation officer, Terri Hayes, testified that she had given a drug test to
Newman after her first probation-violation hearing. After Hayes told Newman that a
saliva test had been positive for methamphetamines and amphetamines, Hayes began
reading Newman her Miranda rights, apparently as a first step in taking her into custody.
Hayes said that Newman then stood up, said, "I'm out of here," and left. Hayes called
courthouse security personnel, but Newman apparently left the courthouse before those
officers could intercept her at the front entrance.

The district court found that Newman had absconded when she left after being
advised of the positive result. The court said that Newman knew, based on her earlier
experience on this probation, that she was to be arrested at that time to serve the 3-day
jail sanction and that she "fled [the] probation office to avoid arrest." The court revoked
her probation and ordered that she serve her prison sentence.

Newman has appealed to this court. But once a probation violation has been
established, the decision to revoke probation has traditionally been considered within the
discretion of the district court. See State v. Skolaut, 286 Kan. 219, 227-28, 182 P.3d 1231
(2008). That discretion is now limited by K.S.A. 2016 Supp. 22-3716, but its provision
requiring intermediate sanctions before ordering the defendant to serve the underlying
prison sentence does not apply once the court finds that the defendant has absconded. The
district court's finding here that Newman absconded is supported by evidence presented
at the probation-violation hearing. See Huckey, 51 Kan. App. 2d 451, Syl. ¶¶ 5-6; State v.
Ramirez, No. 114,816, 2016 WL 7178464, at *4 (Kan. App. 2016) (unpublished opinion).

Accordingly, we review the district court's decision only for abuse of discretion.
Unless the court has made a legal or factual error, we may find an abuse of discretion
only when no reasonable person would agree with the decision made by the trial
court. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011). We find nothing
unreasonable about the district court's decision here. Newman had already been given a
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second chance at probation, and she directly defied the court's order that she serve the 3-
day sanction immediately if she tested positive for drug usage.

On Newman's motion, we accepted this appeal for summary disposition
under K.S.A. 2016 Supp. 21-6820(g) and (h) and Supreme Court Rule 7.041A (2017
Kan. S. Ct. R. 48). We have reviewed the record that was available to the sentencing
court, and we find no error in its decision to revoke Newman's probation.

The district court's judgment is therefore affirmed.