State v. Savage

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NOT DESIGNATED FOR PUBLICATION

No. 119,569

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DARRIN C. SAVAGE,
Appellant.

MEMORANDUM OPINION

Appeal from Johnson District Court; BRENDA M. CAMERON, judge. Opinion filed April 19, 2019.
Affirmed.

Submitted by the parties for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and
(h).

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

POWELL, J.: Darrin C. Savage appeals the district court's decision to extend his
probation for 24 months after it found he had violated the terms and conditions of his
probation by failing to make monthly child support restitution payments as ordered. We
granted Savage's motion for summary disposition pursuant to Supreme Court Rule
7.041A (2019 Kan. S. Ct. R. 47). In its response, the State did not object to summary
disposition but asked that we affirm the district court's judgment. After a review of the
record, we agree with the State and affirm.

On April 5, 2000, Savage pled guilty to criminal nonsupport of a child, a severity
level 10 nonperson felony, contrary to K.S.A. 21-3605 (now K.S.A. 2018 Supp. 21-
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5606). By agreement of the parties and as allowed by the statute, the district court stayed
further proceedings provided that Savage, among other things, paid child support in the
amount of $209 per month. Savage also stipulated that he was in arrears in his child
support obligation in the amount of $13,657.34 and agreed to pay $25 per month towards
this arrearage. The district court's order indicated that any failure by Savage to comply
with the order could result in termination of the stay.

On February 13, 2006, the State sought to revoke the stay, alleging that Savage
had failed to make the required payments. According to the record, on November 17,
2010, it appears that Savage stipulated to failing to make payments as required, the stay
was lifted, and the district court found Savage guilty.

On February 4, 2011, Savage was sentenced to 5 months in prison but was placed
on probation from that sentence for a period of 12 months. By agreement of the parties,
child support restitution to the Kansas Payment Center was set at $17,041.65. The
sentencing journal entry reflects this. However, a restitution hearing was ordered
concerning alleged child support restitution owed to the obligee in an amount of $5,000.
The record does not show whether this hearing was ever held, and there is nothing else in
the record to reflect any additional restitution ordered. The probation order appears to
require the payment of restitution, but the amount appears to be scratched out of the
order.

On August 30, 2011, the State sought to revoke Savage's probation, alleging that
Savage had failed to pay "his court fees as directed by the court." The affidavit also
appeared to state that Savage had not paid $149 per month for child support restitution as
required. The matter was continued several times apparently due to ongoing disability
proceedings concerning Savage. At a probation violation hearing held on November 14,
2011, by agreement of the parties and without a violation finding, Savage's probation was
extended for 24 months.
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On December 9, 2013, the State again sought to revoke Savage's probation due to
his failure to make any child support restitution payments between June and November
2013. At a probation violation hearing held on June 17, 2014, Savage stipulated to
violating the terms and conditions of his probation, and both he and the State, given
Savage's recent employment and payments towards child support restitution,
recommended to the district court that his probation be extended for 12 months. Given
Savage's employment and the payments he had made to date, the district court extended
his probation for 12 months.

On June 10, 2015, the record shows that the district court entered an order, without
a motion being filed or a hearing held, extending Savage's probation to June 17, 2018, or
until he completely paid his child support restitution, whichever was sooner, indicating
that it was unlikely Savage would be able to pay off his child support restitution in the
amount of $18,784.36 prior to the expiration of his probation on June 17, 2015. The order
was issued pursuant to K.S.A. 2014 Supp. 21-6608(c)(7), which allows the probation of a
defendant convicted of criminal nonsupport of a child to be extended as long as the child
support restitution amount has not been fully paid. See State v. Gordon, 275 Kan. 393,
406, 66 P.3d 903 (2003) (no hearing required for probation extension involving
probationers convicted of nonsupport of child who still owe restitution).

On December 15, 2017, the State again sought to revoke Savage's probation on
account of his nonpayment of child support restitution. At a probation violation hearing
on March 29, 2018, the State presented evidence showing Savage had not consistently
made monthly child support restitution payments. At no time did Savage or his counsel
challenge the earlier extension of his probation term. Based upon the evidence presented,
the district court found Savage in violation of the terms and conditions of probation. The
State argued for revocation of his probation while Savage argued his probation should be
discharged given the payments he had made to date, his son was now over 18, and the
case had been ongoing for nearly 20 years. Savage himself during his allocution
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expressed frustration at continuing to be required to be put on probation. Ultimately,
instead of revoking Savage's probation, the district court extended it for 24 months and
ordered him to pay $50 per month towards his child support restitution.

Savage timely appeals.

On appeal, Savage argues that the district court abused its discretion by extending
his probation for 24 months. Once a violation has been established, the decision to
modify the terms of probation is within the sound discretion of the district court. See
State v. Skolaut, 286 Kan. 219, 227-28, 182 P.3d 1231 (2008). "Judicial discretion is
abused if [the] action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable
person would have taken 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. Jones, 306 Kan. 948, Syl. ¶ 7, 398
P.3d 856 (2017). Savage bears the burden to show an abuse of discretion by the district
court. See State v. Rojas-Marceleno, 295 Kan. 525, 531, 285 P.3d 361 (2012).

K.S.A. 2018 Supp. 22-3716(c)(1)(A) permits the district court to continue or
modify the release conditions of probation upon a finding that a probationer has violated
the terms of his or her probation. Moreover, in cases involving the criminal nonpayment
of child support, the district court has the discretion to extend a defendant's probation for
as long as child support restitution is owed. K.S.A. 2018 Supp. 21-6608(c)(7).

Here, Savage makes no argument that the evidence does not support the district
court's finding that he violated the terms and conditions of probation. He only argues that
the district court abused its discretion by extending his probation. Admittedly, this case
has been going on for a long time—since the year 2000. While Savage has made
payments, it is undisputed that Savage still owes restitution amounts concerning a child
support arrearage. The record shows that amount is around $6,000. Given that Savage's
conditions of probation are limited to him making $50 monthly payments and providing
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his current address, a further extension of Savage's probation strikes us as reasonable
given that the alternative is incarceration. As Savage fails to persuade us that no
reasonable person would have taken the view of the district court, we must conclude the
district court did not abuse its discretion in extending Savage's probation for 24 months.

Affirmed.