State v. Reed

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NOT DESIGNATED FOR PUBLICATION

No. 118,636

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MISTY D. REED,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed June 29,
2018. Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2017 Supp. 21-6820(g) and (h).

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

PER CURIAM: Misty D. Reed appeals the district court's decision revoking her
probation and ordering her to serve her underlying prison sentence. We granted Reed's
motion for summary disposition in lieu of briefs pursuant to Kansas Supreme Court Rule
7.041A (2018 Kan. S. Ct. R. 47). The State has responded and requested that the district
court's judgment be affirmed.

On November 17, 2015, Reed pled guilty to two counts of residential burglary and
two counts of theft. On January 12, 2016, the district court imposed a controlling
sentence of 26 months' imprisonment and granted probation for 24 months.

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On June 1, 2016, Reed admitted to technical violations of the terms of her
probation, and the district court imposed a two-day jail sanction with additional modified
conditions of probation. On January 30, 2017, Reed again admitted to technical violations
of her probation, and the district court imposed a 180-day prison sanction with modified
conditions of probation.

On October 20, 2017, after Reed had completed her prison sanction and was
reinstated on probation, she admitted to violating the terms of her probation by (1) failing
to report to her supervision officer and (2) failing to attend substance abuse treatment.
She asked the district court to impose a 30-day jail sanction and allow her to enter the
residential community corrections program. Reed argued that she had previously
demonstrated her ability to be successful on probation, she had only failed to report
because she was suffering from postpartum depression, and she had turned herself in for
the current violations. The district court denied her request, revoked Reed's probation,
and ordered her to serve her underlying prison sentence. Reed timely appealed.

On appeal, Reed claims the district court abused its discretion in revoking her
probation. Reed acknowledges that once there has been evidence of a violation of the
conditions of probation, the decision to revoke probation rests in the sound discretion of
the district court. She also acknowledges that under K.S.A. 2017 Supp. 22-3716(c)(1)(E),
the district court may revoke probation after imposing a 180-day intermediate sanction.

The procedure for revoking a defendant's probation is governed by K.S.A. 2017
Supp. 22-3716. Generally, once there has been evidence of a violation of the conditions
of probation, the decision to revoke probation rests in the district court's sound discretion.
State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). An abuse of discretion
occurs when judicial action is arbitrary, fanciful, or unreasonable; is based on an error of
law; or is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
The party asserting the district court abused its discretion bears the burden of showing
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such an abuse of discretion. State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012). A
district court abuses its discretion by committing an error of law in the application of
K.S.A. 2017 Supp. 22-3716 when revoking a defendant's probation. See State v. Still, No.
112,928, 2015 WL 4588297, at *1 (Kan. App. 2015) (unpublished opinion).

Here, the district court gave Reed many opportunities to succeed on probation. She
violated the conditions of her probation three separate times, and all the violations
involved her failure to report to her supervising officer. As Reed acknowledges, the
district court was not required to impose additional intermediate sanctions for the third
probation violation after it already had imposed the prior jail and prison sanctions. See
K.S.A. 2017 Supp. 22-3716(c)(1)(E). While her claimed postpartum depression is a
mitigating factor, it does not excuse Reed's repeated violations of the conditions of her
supervision. The district court's decision to revoke Reed's probation was not arbitrary,
fanciful, or unreasonable, and it was not based on an error of fact or law. Reed has failed
to show that the district court abused its discretion by revoking her probation and
ordering her to serve her underlying prison sentence.

Affirmed.