State v. Smith

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NOT DESIGNATED FOR PUBLICATION

No. 119,097

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MICHAEL C. SMITH,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed October 19,
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: Michael C. Smith appeals the district court's decision revoking his
probation and ordering him to serve a modified prison sentence. We granted Smith's
motion for summary disposition under Kansas Supreme Court Rule 7.041A (2018 Kan.
S. Ct. R. 47). The State has requested that the district court's judgment be affirmed.

On August 23, 2016, Smith pled guilty to one count of possession of cocaine and
one count of misdemeanor criminal damage to property. On October 20, 2016, the district
court imposed a controlling sentence of 28 months' imprisonment but made border box
findings and placed Smith on probation for 12 months.

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At a hearing on October 3, 2017, the district court found that Smith violated the
conditions of his probation by committing a new crime of aggravated escape from
custody when he left without permission the residential facility where he had been placed
as a condition of his probation. The district court revoked Smith's probation and ordered
him to serve a modified sentence of 25 months' imprisonment. Smith timely appealed.

On appeal, Smith claims the district court "abused its discretion in ordering him to
serve a modified sentence instead of reinstating probation." Smith points out that he was
only three weeks from completing the residential program. He asserts that throughout his
time in the program, he had maintained a job and made significant progress in his
treatment. Smith argues that reinstating his probation would have promoted offender
reformation and kept him out of an already overcrowded prison system.

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
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).

Here, the district court revoked Smith's probation after finding that he had
committed a new crime while on probation. As a result, the district court did not have to
impose an intermediate sanction in this instance. See K.S.A. 2017 Supp. 22-
3716(c)(8)(A). Smith does not challenge this finding on appeal. The record also reflects
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that this was Smith's second probation violation and he had previously received an
intermediate sanction from the court. Finally, the district court showed some leniency by
lowering Smith's prison sentence to 25 months. The district court's decision to revoke
Smith's probation was not arbitrary, fanciful, or unreasonable, and it was not based on an
error of fact or law. Smith has failed to show that the district court abused its discretion
by revoking his probation and ordering him to serve a modified prison sentence.

Affirmed.