State v. Robbins

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NOT DESIGNATED FOR PUBLICATION

Nos. 117,815
117,816

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

PATRICIA MICHELLE ROBBINS,
Appellant.


MEMORANDUM OPINION

Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed March 9, 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: Patricia Michelle Robbins appeals the district court's decision
revoking her probation and ordering her to serve her underlying prison sentences in two
separate cases. We granted Robbins' 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
filed a response and requested that the district court's judgment be affirmed.

In 16CR22, Robbins was convicted of one count of interference with a law
enforcement officer. On November 18, 2016, the district court sentenced Robbins to 16
months' imprisonment but granted a dispositional departure to probation for 12 months.

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In 16CR464, Robbins was convicted of one count of criminal threat. On July 27,
2016, the district court sentenced Robbins to 15 months' imprisonment but granted a
dispositional departure to probation for 12 months.

On April 20, 2017, the State filed a motion to revoke probation in both cases
alleging that Robbins had failed to report to her intensive supervision officer (ISO) as
directed, failed to refrain from possessing or consuming drugs and alcohol, failed to
submit to urinalysis, failed to keep her ISO advised of her address and phone number,
failed to complete a mental health assessment, and failed to complete substance abuse
treatment. The motion also specifically alleged that Robbins was an absconder.

At a hearing on May 2, 2017, Tonda McGrath, Robbins' ISO, testified to support
the alleged probation violations. McGrath testified that Robbins had failed to report for
over 60 days and that McGrath had completely lost contact with Robbins despite
numerous attempts to try to locate her. After hearing the evidence, the district court found
that Robbins was in violation of her probation on all the grounds set forth in the motion
to revoke. The district court specifically found that Robbins had absconded while on
probation. Based on these findings, the district court revoked Robbins' probation in each
case and ordered her to serve her underlying prison sentences. Robbins timely appealed.

On appeal, Robbins claims the district court "erred by revoking probation and
ordering service of the prison sentence[s] without imposing an intermediate sanction."
However, Robbins acknowledges that under K.S.A. 2017 Supp. 22-3716(c)(9)(B), the
district court may revoke probation without having previously imposed an intermediate
sanction if the probation originally was granted as a dispositional departure, even though
the district court did not rely on this provision in revoking Robbins' probation.

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
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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
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).

K.S.A. 2017 Supp. 22-3716 generally provides that once a defendant has violated
the conditions of probation, the district court must apply graduated intermediate sanctions
before the court can revoke probation and order the defendant to serve the sentence
imposed. See K.S.A. 2017 Supp. 22-3716(c)(1)(A)-(D). Pursuant to K.S.A. 2017 Supp.
22-3716(c)(8)(B), the court may revoke probation without having previously imposed an
intermediate sanction if the offender absconds from supervision while on probation.

Here, the district court revoked Robbins' probation on numerous grounds and
found that she had absconded from supervision while on probation. Robbins does not
challenge the sufficiency of the evidence supporting the absconder finding. An issue not
briefed by the appellant is deemed waived or abandoned. State v. Williams, 303 Kan. 750,
758, 368 P.3d 1065 (2016). Based on the absconder finding, the district court was not
required to impose an intermediate sanction in this instance. The district court's decision
to revoke Robbins' probation was not arbitrary, fanciful, or unreasonable, and it was not
based on an error of fact or law. Robbins has failed to show that the district court abused
its discretion by revoking her probation and ordering her to serve her prison sentences.

Affirmed.