State v. Shrewsbury

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NOT DESIGNATED FOR PUBLICATION

Nos. 116,091
116,092
116,093

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TERRY W. SHREWSBURY,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; DOUGLAS R. ROTH, judge. Opinion filed September 8,
2017. Affirmed.

Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.

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

Before BRUNS, P.J., MCANANY, J., and STEVEN R. EBBERTS, District Judge, assigned.

PER CURIAM: Pursuant to a guilty plea, the district court in Sedgwick County,
Kansas convicted Terry Shrewsbury of a total of six charges in three unrelated cases: one
count of possession of methamphetamine; four counts of forgery; and one count burglary.
In accordance with the plea agreement, a total of six other charges were dismissed, and
Shrewsbury was given an underlying sentence of 44 months, suspended, and 18 months
of probation. Within a few months, Shrewsbury admitted to several probation violations,
primarily related to drug use and failure to complete treatment. After an extended hearing
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on the matter of sanctions, the district court revoked Shrewsbury's probation and imposed
the 44-month underlying sentence. Shrewsbury appeals arguing the district court abused
its discretion by revoking his probation and imposing the underlying sentence. After
careful examination of the district court record, this court finds no abuse of discretion and
affirms the actions of the district court.

In June 2015, Terry Shrewsbury entered a plea of guilty to a total of six charges in
three unrelated Sedgwick County criminal cases: 15CR826 to one count of possession of
methamphetamines, a level five drug grid nonperson felony; 15CR1080 to two counts of
forgery, level eight nonperson felonies; and in 15CR1638 to two counts of forgery, level
8 nonperson felonies, and one count of burglary, a level nine nonperson felony. In
exchange, a total of six other charges were dismissed; the State recommended mitigated
sentences, which were to run concurrent as to counts and consecutive as to cases, and the
State also recommended probation.

Prior to sentencing, Shrewsbury's appearance bond was revoked due to his being
arrested in early July 2015 for two incidents of theft and one incident of driving with a
suspended license. These crimes were ultimately not formally charged.

At Shrewsbury's October 2015 sentencing hearing, his criminal history score was
determined to be an E based on seven nonperson felonies, one person misdemeanor, and
six nonperson misdemeanors, comprised primarily of drug-related and theft-related
convictions, with one battery conviction and one weapons-related conviction. The district
court "reluctantly" accepted the plea agreement, sentencing Shrewsbury to an underlying
sentence of 44 months, suspended, and 18 months' probation. The district court described
the terms and conditions of Shrewsbury's probation, which included to successfully
complete Senate Bill 123 treatment; to attend A.A. or N.A. as his treatment provider or
probation officer ordered; to not possess, use, or consume alcohol or drugs; and to submit
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to random drug and alcohol screenings. Shrewsbury was warned of the consequences for
violating his probation.

In early December 2015, Shrewsbury used methamphetamine, and he used the
drug several times throughout December and into January 2016. He also used marijuana
on at least one occasion in January 2016. By mid-January 2016, he was discharged from
Senate Bill 123 treatment for failure to comply and attend. At a February 2016 hearing on
whether to revoke Shrewsbury's probation, even after being told by the district judge that
he could revoke Shrewsbury's probation and send him to prison for 44 months,
Shrewsbury admitted to these probation violation allegations and waived his hearing. The
district court accepted Shrewsbury's waiver and found that he violated the terms and
conditions of his probation as alleged. The State requested that the underlying sentence
be imposed; Shrewsbury offered that he relapsed because his cousin died and requested
that he be allowed to go back to treatment because he was "getting a lot out of it," but he
also stated that he did not want to participate in drug court.

The district judge stated that he did not send Shrewsbury to the penitentiary at
sentencing based on Shrewsbury's representation that he would follow through with
treatment. The court observed that Shrewsbury had a pattern of committing crimes and
victimizing the public, stores, and businesses and that his continued use of drugs made
him a danger to himself. The court expressed concern that Shrewsbury committed new
crimes because of his drug use and the lack of follow-through on treatment and while he
was on probation or had other cases pending. The court announced its intent to revoke
probation and impose the underlying 44-month prison sentence but recessed to allow the
parties to research and prepare arguments on the matter; before going off the record, the
judge stated numerous reasons for his intent and predicted that if the court did not impose
the underlying sentence, Shrewsbury would be back in court again within a couple of
months for new violations.

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In March 2016, the probation revocation hearing reconvened, and after listening to
arguments on both sides, the court revoked Shrewsbury's probation and imposed the 44-
month underlying sentence. The district court made findings in support of its
determination that reinstating Shrewsbury's probation would put the public in jeopardy
and would be contrary to his welfare. Those findings included: Shrewsbury's criminal
history and the nature of his convictions, which include alcohol and drug-related
offenses; the short period of time between his court appearances and relapses; the short
period of time between his court appearances and new arrests and charges; his inability to
follow through on his own stated desire to get treatment; that many of his crimes are
accomplished to generate funds to finance his addiction, which harms the public, e.g.,
individuals, shops, businesses, and banks; he continues to drive without a valid license
and does so at times while under the influence; his DUIs create a danger to the public as
well as to himself; two of his previous crimes suggest violence (battery and the firearm
convictions), which is a danger to others; he used drugs while he was supposed to be in
treatment; he was discharged from treatment for noncompliance and failure to attend; his
choices reflect that he is not interested in doing what is necessary to stop using drugs; and
his previous periods of incarceration demonstrate that a "quick dip" or "soak" would not
be effective.

Shrewsbury filed this timely appeal.

ANALYSIS

Shrewsbury contends the statutory provisions of K.S.A. 2016 Supp. 22-3716(c),
regarding graduated sanctions, should have been employed by the court before imposing
his underlying 44-month prison sentence for his probation violations. Specifically,
Shrewsbury contends the court abused its discretion in finding that he was a danger to
himself and the public and the court failed to set forth with sufficient particularity its
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findings. Shrewsbury argues the proper remedy is to reverse the district court and order
his probation be reinstated.

Standard of Review

The district court's imposition of the underlying prison term is reviewed for an
abuse of 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 trial court abused its discretion bears the
burden of showing that abuse of discretion. State v. Rojas-Marceleno, 295 Kan. 525, 531,
285 P.3d 361 (2012). As discussed below, Shrewsbury has not met his burden.

K.S.A. 2016 Supp. 22-3716(c)(9)

A district court's decision to revoke a defendant's probation and impose the
underlying prison term is discretionary unless otherwise required by statute. State v.
Brown, 51 Kan. App. 2d 876, 879-80, 357 P.3d 296 (2015). Whether the court abused its
discretion should be considered in accordance with K.S.A. 2016 Supp. 22-3716(c)(9).
Under this statute, a court may revoke probation and impose the underlying sentence
without having previously imposed graduated sanctions "if the court finds and sets forth
with particularity the reasons for finding that the safety of members of the public will be
jeopardized or that the welfare of the offender will not be served by such a sanction."
K.S.A. 2016 Supp. 22-3716(c)(9). In this case, the court's statutory authority is not
questioned. Rather, Shrewsbury suggests that the court did not demonstrate with
sufficient particularity how he posed a risk to himself and the public, contending that the
judge merely cited to his history of drug abuse.

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At the initial probation revocation hearing, and after discussion, the court
announced its intent to revoke Shrewsbury's probation and impose the underlying
sentence and, in doing so, articulated numerous reasons, such as Shrewsbury's drug
history and criminal history; his crimes as linked to his drug and alcohol use; his health
and well-being; his reluctance to adhere to probation requirements, including evaluation
and treatment; and the impact of his conduct on the public. Nevertheless, the judge
recessed the hearing to allow the parties to research and prepare arguments on the matter.
When the hearing reconvened, after arguments, the court provided a narrative of
approximately nine pages, going into even more detail regarding the court's reasons for
finding that the safety of the public was in jeopardy, as was Shrewsbury's welfare, if he
were returned to probation or if the court imposed a lesser sanction. The court also
discussed the futility of "quick dips" and "soaks" on Shrewsbury since he had already
spent months at a time in jail without the effect of changing his behavior or inspiring a
commitment to rehabilitation and treatment. Shrewsbury does not indicate what
additional reasons the court should have considered but argues that treatment was the
more appropriate option. Mere disagreement does not amount to an abuse of discretion.
See Rojas-Marceleno, 295 Kan. at 530-33.

Shrewsbury has failed to demonstrate that the district court abused its discretion in
its imposition of his underlying sentence. The district court was not arbitrary, fanciful, or
unreasonable in its decision to revoke Shrewsbury's probation for the admitted violations
and impose his underlying sentence. Thus, the district court's order revoking
Shrewsbury's probation and imposing his underlying 44-month prison sentence was
proper.

Affirmed.