State v. Nicholas

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NOT DESIGNATED FOR PUBLICATION

No. 116,035

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MICHAEL D. NICHOLAS,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed July 28, 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 BUSER, P.J., MALONE, J., and HEBERT, S.J.

Per Curiam: Michael D. Nicholas appeals the revocation of his probation. The
district court imposed intermediate sanctions for two prior violations. Upon finding a
third violation, the district court exercised its discretion to revoke Nicholas' probation and
impose the underlying sentence. We affirm this judgment.

Factual and Procedural Background

Nicholas was charged with possession of methamphetamine on March 11, 2015.
Nicholas pled guilty to the crime on July 9, 2015. Nicholas filed a motion for durational
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or dispositional departure, and a sentencing hearing was held on August 28, 2015. The
presentence investigation (PSI) report showed that Nicholas had a criminal history score
of A. The district court granted the departure motion and sentenced Nicholas to 12
months' probation with a 40-month underlying prison term.

On October 7, 2015, a hearing was held on a probation violation warrant. At that
hearing Nicholas admitted to driving without a license and received a 3-day county jail
sanction for the violation. On November 19, 2015, another probation violation hearing
was held. Nicholas admitted to testing positive for amphetamines and marijuana, failing
to report to his probation officer, and failing to tell his probation officer of an address
change. He received a 120-day prison sanction and was ordered to attend inpatient drug
treatment after serving that sanction.

On March 2, 2016, another probation violation hearing was held. At that hearing,
Nicholas admitted to violating his probation when he left his drug treatment program
following the prison sanction and for failing to notify his probation officer of an address
change. The district court revoked Nicholas' probation, and his 40-month underlying
sentence was imposed. Nicholas timely filed his notice of appeal.

Revocation was not an abuse of discretion.

On appeal, Nicholas contends the district court abused its discretion by revoking
his probation. The State maintains that Nicholas' course of conduct on probation after
being granted a dispositional departure from a presumptive prison sentence established
that he was not amenable to probation.

In their respective briefs, neither party discussed the applicability of K.S.A. 2016
Supp. 22-3716(c)(1). That statute provides for graduated intermediate sanctions for
probation violations where, as here, the crime of conviction is a felony. For a first
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violation, the statute provides for "confinement in a county jail" for "a two-day or three-
day consecutive period." K.S.A. 2016 Supp. 22-3716(c)(1)(B). This sanction,
colloquially known as a "quick dip," was ordered by the district court for Nicholas' first
admitted violation.

The statute next provides for a 120-day prison sanction, colloquially referred to as
a "soak," for a second violation. K.S.A. 2016 Supp. 22-3716(c)(1)(C). Again, this
sanction was imposed by the district court for Nicholas' second admitted violation. The
district court also required Nicholas to enter and complete an inpatient drug treatment
program after completing his 120-day prison sanction.

K.S.A. 2016 Supp. 22-3716(c)(1)(E) provides the district court with the option of
revocation for any violation occurring after the completion of the prison sanction. In view
of the record now before it, the district court exercised the statutory option of revocation.
Despite Nicholas' argument the district court abused its discretion by imposing a prison
sentence which was "not appropriate in achieving the goals of the Kansas Sentencing
Guidelines," the district court's decision is squarely in conformity with the statutory
framework for dealing with multiple probation violations.

Once a violation of probation is established—here, by Nicholas' admission—"the
decision to revoke probation rests in the sound discretion of the district court." State v.
Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). A judicial action constitutes an
abuse of discretion if (1) no reasonable person would take 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. Marshall,
303 Kan. 438, 445, 362 P.3d 587 (2015). Furthermore, an abuse of discretion occurs if
"discretion is guided by an erroneous legal conclusion" or goes outside the framework of
or fails to consider proper statutory limitations or legal standards. State v. Collins, 303
Kan. 472, 466, 477, 362 P.3d 1098 (2015).

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We find no abuse of discretion in this case. Nicholas' original offense called for a
presumptive prison sentence, but the district court exercised leniency by granting a
dispositional departure to probation. Nicholas had already violated probation on two prior
occasions before this third and final time. The second violation was for testing positive
for marijuana and amphetamines, which was especially troubling considering his original
offense of possession of methamphetamine. Despite this concern, the district court did
not revoke Nicholas' probation at that time but, rather, offered him the opportunity for the
120-day intermediate sanction and for inpatient treatment. But Nicholas again violated
his privilege of probation by leaving the inpatient drug treatment program and not
notifying his probation officer of his whereabouts—violations which Nicholas admitted.
By his own conduct, Nicholas left the district court with little choice but to exercise the
statutory option for probation revocation.

The district court's decision was a position which reasonable persons would adopt.
It was not based on an error of law nor was it based on an error of fact. Marshall, 303
Kan. at 445. The decision was not guided by an erroneous legal conclusion nor did it go
outside the framework or fail to consider proper statutory limitation of legal standards.
Collins, 303 Kan. at 477. The district court exercised sound discretion in this case, and
the order of revocation is affirmed.

Affirmed.