State v. Smith

1

NOT DESIGNATED FOR PUBLICATION

No. 114,364


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TOBY SMITH,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed April 15,
2016. Affirmed.

Submitted by the parties for summary disposition pursuant to K.S.A. 2015 Supp. 21-6820(g) and
(h).

Before SCHROEDER, P.J., HILL and GARDNER, JJ.

Per Curiam: Toby Smith pled guilty to burglary, misdemeanor theft, and
misdemeanor criminal damage to property. He was sentenced to 29 months in prison
which was suspended for 24 months' probation. Smith admitted several probation
violations, and the district court revoked his probation and imposed a modified 27-month
prison sentence. Smith contends it was unreasonable to revoke his probation and send
him to prison. He asks for summary disposition of his sentencing appeal. Finding no
error, we affirm.


2

Smith commits a crime while on probation.

Smith pled guilty to burglary under K.S.A. 2012 Supp. 21-5807(a)(2),(c)(1)(B), a
severity level 7 nonperson felony; one count of theft under K.S.A. 2012 Supp. 21-
5801(a)(1),(b)(4), a class A nonperson misdemeanor; and one count of criminal damage
to property under K.S.A. 2012 Supp. 21-5813(a)(1),(b)(3), a class B nonperson
misdemeanor. The district court ordered Smith to comply with various conditions of the
community corrections intensive supervision program.

The State subsequently alleged Smith had violated his probation by (1)
committing the crime of petty theft in October 2013; (2) failing to report contact with law
enforcement within 24 hours of the October 2013 petty theft incident; (3) failing to attend
outpatient drug/alcohol treatment, resulting in Smith being unsuccessfully discharged in
November 2013; and (4) failing to report to his intensive supervision officer on October
30, 2013, or any time thereafter.

At the hearing, Smith admitted the allegations and waived his right to an
evidentiary hearing. The district court revoked Smith's probation. Smith requested the
district court reinstate probation and order the drug court program or residential drug
treatment. The district court found that given the seriousness of Smith's violations and his
failed past attempts to modify his drug addiction or behavior, Smith had demonstrated he
was not amenable to probation and reinstating probation would not benefit him. The
district court also found that the fact Smith had committed a new crime while on
probation and absconded provided a legal basis to send Smith back to prison. The district
court granted a modification to Smith's 29-month underlying sentence and ordered him to
serve the 27-month mid-range presumptive term of imprisonment. The journal entry of
judgment checked the boxes "Violation – No New Conviction" and
"Absconded/Committed New Crime" as the reasons for the revocation hearing.

3

On appeal, Smith moved for summary disposition without briefing under Supreme
Court Rule 7.041A (2015 Kan. Ct. R. Annot. 67). Smith argues that the district court's
prison sanction was an abuse of discretion and unreasonable.

We first address whether the district court acted unreasonably by revoking Smith's
probation. The law of probation revocations is well settled. Once there is evidence of a
probation violation, the decision to revoke probation rests 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 is (1) arbitrary, fanciful, or unreasonable; (2) is
based on an error of law; or (3) is based on an error of fact. Fischer v. State, 296 Kan. -
808, Syl. ¶ 8, 295 P.3d 560 (2013). Smith bears the burden of showing such abuse of
discretion. See State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).

Smith does not deny that he violated the conditions of his probation. The record
does not point to any errors of fact or law in the district court's decision to revoke his
probation. In light of Smith's admissions and the absence of any good reason in the
record for concluding the district court's decision was arbitrary, fanciful, or unreasonable,
we hold the district court was well within its discretion to revoke Smith's probation. We
affirm the probation revocation.

Our law, K.S.A. 2013 Supp. 22-3716(c), provides that a sentencing court must
generally impose an intermediate sanction before ordering an offender to serve his or her
underlying sentence, unless certain exceptions apply. See K.S.A. 2013 Supp. 22-
3716(c)(1). Intermediate sanctions are not required if the offender commits a new crime,
absconds from supervision, or the sentencing court finds and sets forth with particularity
its reasons for finding that the safety of members of the public will be jeopardized or that
the offender's welfare will not be served by such sanction. K.S.A. 2013 Supp. 22-
3716(c)(8) and (9).

4

Since Smith admitted to committing a new crime of petty theft while on probation,
the sentencing court may revoke his probation and impose the underlying sentence or any
lesser sentence. See K.S.A. 2013 Supp. 22-3716(c)(8).

Having reviewed the record, we find the district court's decision to revoke Smith's
probation and order him to serve a 27-month sentence was neither unreasonable nor an
abuse of discretion.

Affirmed.