State v. Rodriguez

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NOT DESIGNATED FOR PUBLICATION

No. 118,861

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CHARLES M. RODRIGUEZ JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed February 15,
2019. Affirmed.

Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before BUSER, P.J., POWELL, J., and STUTZMAN, S.J.

PER CURIAM: Charles M. Rodriguez Jr. appeals the district court's decision to
deny his request to modify his sentence upon the revocation of his probation. Rodriguez
admitted to the violations and requested that the court impose a modified prison term of
24 months. Rather than imposing the original sentence of 37 months in prison, the district
court ordered service of a modified sentence of 30 months. Rodriguez claims the district
court should have further modified his sentence to 24 months because the shorter prison
term would be significantly more beneficial both to Rodriguez and the community. Given
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the facts before the district court, including Rodriguez' multiple failures while on
probation, we find no abuse of discretion in the district court's decision.

FACTS AND PROCEDURAL BACKGROUND

On May 28, 2015, Rodriguez pled guilty to one count of violating the Kansas
Offender Registration Act pursuant to K.S.A. 2014 Supp. 22-4903(a), (c)(1)(A), a
severity level 6 person felony. At the sentencing hearing on August 7, 2015, the district
court followed the plea agreement and granted Rodriguez a dispositional departure from
the presumed prison sentence. The court sentenced Rodriguez to 37 months in prison, the
mitigated duration in the applicable grid box, and granted probation for 24 months.

Less than two months later, Rodriguez stipulated to violating the terms of his
probation by consuming alcohol and failing to complete any community service work as
ordered. The district court continued Rodriguez on probation and ordered him to serve a
two-day jail sanction. In November 2015, Rodriguez again waived his rights and
stipulated to violating the terms of his probation, agreeing that he violated the terms of
his probation by fraudulently documenting his community service hours. He accepted a
three-day jail sanction from his Intensive Supervision Officer (ISO).

Again, for a third time, on March 16, 2016, Rodriguez stipulated to violating the
terms of his probation, this time by being arrested for DUI, driving while suspended,
refusing to submit to a breath test, unlawfully consuming drugs or alcohol, violating his
curfew, and failing to make payments as ordered by the court. The court continued
Rodriguez on probation—although incorrectly stating Rodriguez' probation was revoked
but "reinstated"—and extended the term for an additional 24 months. The district court
also modified the terms of probation, ordering Rodriguez to establish a residence in a
clean and sober living establishment, undergo mental health and substance abuse
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evaluations, and follow treatment recommendations. Finally, the district court ordered
Rodriguez to serve a 180-day prison sanction.

On September 1, 2016, Rodriguez stipulated to violating the terms of probation for
a fourth time. After Rodriguez had spent almost 30 days in jail awaiting disposition, the
district court held a hearing where it was announced a bed at an inpatient treatment
facility had been secured. The court ordered Rodriguez to report to inpatient treatment on
October 26, 2016, and to reside in an Oxford house for at least 120 days after completing
treatment. Rodriguez informed the district court that he had already made plans to stay at
Jeremiah house after completing his inpatient treatment.

On March 24, 2017, the district court accepted Rodriguez' stipulation to new
violations for a fifth time, including testing positive for cocaine and opiates, being
discharged from the Jeremiah house following a verbal altercation with the house
manager, and failing to provide his ISO with an updated list of prescribed medications.
Rodriguez explained he did not believe his recovery would be furthered if he returned to
the Jeremiah house, and he requested his probation be continued with placement at a
different facility. The district court granted this request, extended his term of probation
for 24 months, and ordered Rodriguez to remain in custody until a new placement was
approved by his ISO.

On November 30, 2017, Rodriguez stipulated to violating his probation for a sixth
time by failing to report to his ISO as directed, failing to attend cognitive skills class,
being removed from the Union Rescue Mission after purchasing opiates from another
resident, failing to make court ordered payments, and failing to notify his ISO of his
change in address.

At the final violation hearing, Rodriguez requested that he receive a modified
prison term of 24 months. In support of his request, Rodriguez noted that several of his
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most recent violations were the result of a severe illness, preventing him from meeting
with his ISO and attending cognitive skills class. He also pointed to the progress he had
made while on probation, including the fact that he remained sober for nearly a year and
had completed inpatient and outpatient treatment.

The district court revoked Rodriguez' probation and ordered him to serve a
modified sentence of 30 months in prison followed by 24 months of postrelease
supervision. The court explained:

"In the past, I've tipped those scales in your favor. At this point . . . I'm going to
find there is an ongoing public safety consideration. Your actions just don't make me
comfortable that you won't be committing new crimes in the future. Your actions,
especially the being kicked out of the Union Rescue Mission and the purchasing of illegal
pills, or at least pills illegal for you to possess, not participating in the education classes
made available to you through community corrections. I find that reinstatement of
probation would not be in your best welfare or best interest. I will note that you've
already had quick dips. Just in case, I made these special findings concerning public
safety and not in your best interest or welfare to also circumvent the graduated sanctions
track.
"I will impose a modified sentence of 30 months."

Rodriguez timely appeals.

ANALYSIS

Rodriguez contends the district court's decision not to modify his sentence to 24
months as he requested was unreasonable because he had made a good-faith effort to
comply with the terms of his probation and had made some progress that was to be
commended.

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We review the district court's denial of a defendant's request for a modified
sentencing following the revocation of probation for an abuse of discretion. State v.
Reeves, 54 Kan. App. 2d 644, 648, 403 P.3d 655 (2017), rev. denied 307 Kan. 992
(2018). A judicial action constitutes an abuse of discretion if (1) no reasonable person
would take the view adopted by the trial court; (2) it is based on an error of law; or (3) it
is based on an error of fact. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).
The party asserting the district court abused its discretion bears the burden of showing
such abuse of discretion. State v. Smith-Parker, 301 Kan. 132, 161, 340 P.3d 485 (2014).

Upon a finding of probation violation after having served required intermediate
sanctions, the district court may revoke probation and require the probationer "to serve
the sentence imposed, or any lesser sentence." (Emphasis added.) K.S.A. 2017 Supp. 22-
3716(c)(1)(E). The district court had the discretion to revoke Rodriguez' probation and
remand him to serve the full prison sentence that was originally ordered.

Rodriguez makes a public policy argument that K.S.A. 2017 Supp. 22-
3716(c)(1)(E) allows the district court to impose a modified sentence to reduce the prison
population and protect the public safety by distinguishing between more serious and less
serious offenders. See State v. Richardson, 20 Kan. App. 2d 932, 943, 901 P.2d 1 (1995).
He also points to the fact that this court has previously recognized legitimate penological
goals such as retribution, deterrence, incapacitation, and rehabilitation. See State v. Reed,
51 Kan. App. 2d 107, 111, 341 P.3d 616 (2015), rev. denied 304 Kan. 1021 (2016).

To further support his claim that the district court should have reduced his
sentence to 24 months, Rodriguez contends he made progress toward recovery during his
term of probation and asserts that the State has an interest in his rehabilitation. He argues
he is not a dangerous offender and a shorter prison term would allow him to access more
treatment and sober-living resources in the community.

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Even if we were to find Rodriguez' arguments highly persuasive, we cannot ignore
the significant fact that he stipulated to violating the terms of his probation six times and
the district court already had imposed the statutory intermediate sanctions required by
K.S.A. 2017 Supp. 22-3716(c). The district court initially departed from the presumed
prison sentence, giving Rodriguez an opportunity to avoid prison through success on
probation and, from sentencing through the date of revocation, the court ordered
conditions of probation designed to support Rodriguez in his recovery for substance
abuse.

Rodriguez violated the terms of his probation multiple times and in multiple ways,
and he had already served intermediate sanctions. After Rodriguez' six violations, the
district court still modified his prison term from the original 37 months to 30 months. We
cannot find that no reasonable person would have made that decision on sentence
modification. And, the modification to 30 months rather than 24 was not based on either
an error of law or fact. The district court did not abuse its discretion in denying
Rodriguez' request to impose a modified prison sentence of 24 months.

Affirmed.