State v. Thunder

NOT DESIGNATED FOR PUBLICATION

No. 118,028

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

LAKOTA F. THUNDER,
A/K/A URSALA HAIRYSHIRT,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRISTOPHER M. MAGAÑA, judge. Opinion filed January
5, 2018. Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2016 Supp. 21-6820(g) and (h).

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

PER CURIAM: Lakota Thunder appeals the district court's decision revoking her
probation and ordering her to serve her underlying prison sentence. Thunder contends the
district court should have given her another chance at probation instead of ordering her to
serve her 40-month underlying sentence. But Thunder committed additional crimes while
she was on probation, thus giving the district court the discretion to send her to prison.
We find no abuse of discretion in the district court's decision to do so.

In May 2016 Thunder pleaded guilty to one count of possession of
methamphetamine and two counts of identity theft. Two months later, in July, she was
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sentenced to an 18-month term of probation, with an underlying sentence of 40 months
that she would have to serve if she didn't successfully complete her probation.

Between July 2016 and July 2017 Thunder violated the terms of her probation at
least four times. She also committed several other criminal offenses, including identity
theft, forgery, theft, possession of stolen property, driving while suspended, and
possession of drug paraphernalia. She admitted to all of the State's allegations.

The court proceeded to revoke Thunder's probation, ordering her to serve her
original 40-month prison sentence. Now she argues that the court should not have done
so, presumably suggesting that the court instead should have given her another chance at
probation.

Once a probation violation has been established, the decision to revoke probation
has traditionally been considered within the discretion of the district court. See State v.
Skolaut, 286 Kan. 219, 227-28, 182 P.3d 1231 (2008). That discretion is now limited by
K.S.A. 2016 Supp. 22-3716, which generally requires the court to use intermediate
sanctions before sending a defendant to prison for violating his or her probation. In most
cases, for example, on the offender’s first probation violation, the court must order him or
her to serve two or three days in the county jail—one type of intermediate sanction, also
known as a "quick dip"—instead of revoking the defendant's probation and imposing the
prison sentence. K.S.A. 2016 Supp. 22-3716(c)(1)(B).

Thunder presumably suggests that this is what the court should have done instead
of revoking her probation. At her hearing, Thunder asked for a three-day "quick dip." But
Thunder committed multiple crimes while she was on probation, and the statute's
intermediate-sanctions requirement doesn't apply if the court finds that the defendant has
committed a new offense while on probation. See K.S.A. 2016 Supp. 22-3716(c)(8).

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Since Thunder committed new offenses—thus meeting an exception to the
requirement to use an intermediate sanction—we review the district court's decision in
this case only for abuse of discretion. Unless the court revoked Thunder's probation based
on a legal or factual error, we may find an abuse of discretion only when no reasonable
person would agree with the decision made by the trial court. State v. Ward, 292 Kan.
541, 550, 256 P.3d 801 (2011).

We find nothing unreasonable about the district court's decision here. Thunder
failed to comply with the terms of her probation and committed even more crimes while
on probation. Indeed, a reasonable person could agree with the district court's decision to
impose the prison sentence.

On Thunder's motion, we accepted this appeal for summary disposition under
K.S.A. 2016 Supp. 21-6820(g) and (h) and Supreme Court Rule 7.041A (2017 Kan. S.
Ct. R. 48). We reviewed the record that was available to the sentencing court, and we find
no error in its decision to revoke Thunder's probation.

We therefore affirm the district court's judgment.