State v. Staum

NOT DESIGNATED FOR PUBLICATION

No. 118,016

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DEREK D. STAUM,
Appellant.


MEMORANDUM OPINION

Appeal from Miami District Court; AMY L. HARTH, judge. Opinion filed March 30, 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.

LEBEN, J.: Derek Staum appeals the district court's decision to revoke his
probation and order that he serve the underlying sentence on his conviction for
possession of methamphetamine. Staum argues on appeal that the district court should
have given him an additional chance at probation. But the court had already given Staum
plenty of chances to succeed on probation; it wasn't required to give him another.

Staum was first sentenced to probation in 2014. Between 2014 and 2017—when
Staum's probation was finally revoked and he was sent to serve his prison sentence—the
district gave Staum several "second" chances. In fact, the court gave him another chance
four different times. Each time, the court found that Staum had violated his probation.
And each time, the court ordered some intermediate sanction short of having Staum serve
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his full 30-month prison sentence. At the first violation hearing, the court ordered that he
serve 60 days in the county jail. When he violated probation again and again, the court
ordered that he serve 120 days in prison—and then 180 days in prison on a later
violation. (On one other violation, the court simply ordered that Staum's sanction be the
time he had spent in jail on a warrant while awaiting the hearing about his probation
violation.) After all of that, the court still kept Staum back on probation, ordering that he
report to an Intensive Supervision Officer and complete a substance-abuse treatment
program.

But Staum once again violated the probation. He left the reintegration program of
the drug-treatment provider without permission and failed to report to his Intensive
Supervision Officer for nearly a month before the State filed its final motion to revoke his
probation.

The district court then held a hearing on the final motion to revoke Staum's
probation. Staum, who was represented by an attorney, admitted to the violations the
State had alleged. And he made no argument that his probation should be reinstated yet
again. His attorney simply asked that Staum get credit against his prison sentence for any
time spent in custody:

"Your Honor, I believe the recommendation from the ISO is that he be
remanded to serve the remainder of his sentence. This is multiple violations for Mr.
Staum. He would simply request that all the time he has spent in custody, as well as the
time spent in the rehab program, be counted toward his underlying sentence of 30
months."

The district court then granted the State's motion, revoked Staum's probation, and ordered
that he serve the remainder of his prison sentence (after getting credit for time already
spent in custody). Staum then appealed to our court.

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We first note that Staum did not ask the district court to leave him on probation.
An appellate court normally will not consider an issue raised for the first time on appeal.
State v. Parry, 305 Kan. 1189, Syl. ¶ 2, 390 P.3d 879 (2017). While there are some
exceptions to that rule, Staum does not cite to any in his appeal. We therefore could deny
his appeal solely because the issue he now raises wasn't raised before the district court.
See State v. Thach, 305 Kan. 72, 81, 378 P.3d 522 (2016).

But even if we consider Staum's appeal on its merits, he has not shown that the
district court made an error. Traditionally, district courts in Kansas have broad authority
to revoke probation on any significant violation. A 2013 statutory change limited that
discretion and required that intermediate sanctions generally be used before the court can
revoke probation and impose the underlying prison sentence. But here the district court
had already used these intermediate sanctions, so the district court had the discretion to
revoke probation and impose the prison sentence on a further probation violation. See
K.S.A. 2017 Supp. 22-3716(c).

When the district court has that option, its discretionary decision may be set aside
only for abuse of discretion. A court abuses its discretion if its decision is based on
factual or legal error or no reasonable person would agree with it. See State v. Schaal,
305 Kan. 445, 449, 383 P.3d 1284 (2016); State v. Brown, 51 Kan. App. 2d 876, 879-80,
357 P.3d 296 (2015).

We find no abuse of discretion here. Staum had already had plenty of chances to
succeed at probation. So a reasonable person could easily have concluded that Staum
didn't deserve any more chances.

On Staum's motion, we accepted this appeal for summary disposition under K.S.A.
2017 Supp. 21-6820(g) and (h) and Supreme Court Rule 7.041A (2018 Kan. S. Ct. R.
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47). We have reviewed the record that was available to the sentencing court, and we find
no error in its decision to revoke Staum's probation.

We affirm the district court's judgment.