State v. Patton

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NOT DESIGNATED FOR PUBLICATION

No. 119,729


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JOHN MARTIN PATTON JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; THOMAS M. SUTHERLAND, judge. Opinion filed June 28,
2019. Affirmed.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before GARDNER, P.J., GREEN and ATCHESON, JJ.

PER CURIAM: Defendant John Martin Patton Jr. appeals the Johnson County
District Court's decision revoking his probation on two forgery convictions and ordering
him to serve a controlling 28-month prison term. While acknowledging he received
intermediate sanctions on two earlier probation violations that legally permitted the
district court to send him to prison for this violation, Patton contends the order amounted
to an abuse of judicial discretion under the circumstances. We disagree, especially given
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the escalating character of the violations culminating in Patton's battery of his sister, and,
therefore, affirm the district court.

Pursuant to a deal his lawyer worked out with the prosecutor in late 2015, Patton
pleaded guilty to two counts of forgery, and the district court sentenced him to
consecutive prison terms of 19 and 9 months on the convictions, placed him on probation
for 18 months, and ordered him to pay restitution.

Patton had a rocky go of it on probation. In March 2016, he stipulated to violations
for consuming alcohol and missing several drug tests. The district court imposed a
statutory sanction on Patton requiring him to spend three days in jail. See K.S.A. 2018
Supp. 22-3716(c). The district court also extended Patton's probation for another 18
months.

Just over three months later, the State again alleged Patton had violated the terms
of his probation by continuing to drink alcohol. Patton declined to stipulate to the
violation. After an evidentiary hearing, the district court found that Patton had committed
the violation and imposed a 180-day prison sanction consistent with the graduated
punishments in K.S.A. 2016 Supp. 22-3716(c) for repeat probation violators. Patton
appealed, and this court affirmed. See State v. Patton, No. 116,665, 2017 WL 3207384, at
*1 (Kan. App. 2017) (unpublished opinion), rev. denied 307 Kan. 992 (2018).

In November 2017, the State filed a third allegation of probation violations based
on Patton failing to make payments toward restitution and court costs. The State later
amended the allegations to include another positive test for alcohol and a violation arising
from Patton's arrest for domestic battery of his sister. Patton again declined to stipulate to
the alleged violations, so the district court held an evidentiary hearing in late May 2018.
The district court found the State had proved the violations. As to the domestic battery,
the evidence showed that Patton and his sister lived with their grandmother. Patton and
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his sister had a disagreement that grew into a physical confrontation. Patton grabbed his
sister and threw her to the floor; she fell against a table that toppled and struck her head.
The district court revoked Patton's probation and ordered that he serve the original prison
sentences on the forgery convictions, less the time he spent in jail awaiting adjudication
of the last set of probation violations. Patton has appealed.

We first outline several legal principles relevant to probation revocations.
Probation is an act of judicial leniency afforded a defendant as a privilege rather than a
right. See State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). A district court's
decision to revoke probation usually involves two steps: (1) a factual determination that
the probationer has violated a condition of probation; and (2) a discretionary
determination as to the appropriate disposition in light of the proved violations. State v.
Skolaut, 286 Kan. 219, Syl. ¶ 4, 182 P.3d 1231 (2008).

Here, the State proved the most recent allegations against Patton by a
preponderance of the evidence, satisfying its burden in a probation revocation hearing.
See State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006); State v. Inkelaar, 38
Kan. App. 2d 312, 315, 164 P.3d 844 (2007), rev. denied 286 Kan. 1183 (2008). After a
violation has been proved, the district court has the discretion to impose a statutory
sanction or to revoke the probation and send the probationer to prison in conformity with
the scheme of graduated punishments in K.S.A. 2018 Supp. 22-3716(c). See Skolaut, 286
Kan. at 227-28. Judicial discretion has been abused if the district court's decision is
arbitrary, fanciful, or unreasonable or rests on a substantive error of law or a material
mistake of fact. State v. Cameron, 300 Kan. 384, 391, 329 P.3d 1158, cert. denied 135 S.
Ct. 728 (2014). Patton carries the burden of showing that the district court abused its
discretion. See State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).

On appeal, Patton does not dispute the sufficiency of the evidence supporting the
probation violations. And he acknowledges the district court followed the statutory
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requirements in K.S.A. 2018 Supp. 22-3716(c) by imposing successive intermediate
sanctions on him before ordering him to serve the prison sentences. Patton, likewise, does
not suggest the district court otherwise misapplied the governing law or mistook the
relevant facts. Rather, he contends the district court's decision to send him to prison was
so extreme that no reasonable judicial officer would have come to that conclusion on this
factual record. We disagree.

Patton argues that prison should be reserved for defendants committing violent
and more serious crimes. He cites State v. Favela, 259 Kan. 215, 233, 911 P.2d 792
(1996), in support of that proposition. But in Favela, the court was generally discussing
the circumstances warranting a sentence departure in the first instance—not how a district
court should deal with a chronic probation violator. The Legislature has directly and
specifically outlined its public policy approach to probation violations with the statutory
scheme calling for graduated sanctions for repeat violators culminating in revocation. As
Patton concedes, the district court has complied with that scheme in addressing his
persistent violations.

Moreover, the violations are not merely technical. Patton's inability to abstain
from alcohol indicated an ongoing substance abuse problem. Those problems often have
material collateral effects. Equally significant here, Patton's violations culminated in the
commission of a new (and physically violent) crime—the battery of his sister. The district
court was not required to impose yet another intermediate sanction on Patton. Patton not
only demonstrated an inability to conform to reasonable conditions of probation but
appeared to regress over time. The district court acted reasonably in revoking Patton's
probation and sending him to prison. The decision falls well within the latitude that
constitutes judicial discretion in these circumstances. In other words, we are confident
other district courts would have done the same.

Affirmed.
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