State v. Vaughn

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NOT DESIGNATED FOR PUBLICATION

Nos. 120,198
120,199
120,200

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

REX CLAY VAUGHN JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed July 12, 2019.
Affirmed.

Submitted for summary disposition under K.S.A. 2018 Supp. 21-6820(g) and (h).

Before MALONE, P.J., GREEN and BRUNS, JJ.

PER CURIAM: Rex Clay Vaughn Jr. appeals the district court's decision revoking
his probation and ordering him to serve his original sentences in three separate cases. We
granted Vaughn's motion for summary disposition under Kansas Supreme Court Rule
7.041A (2019 Kan. S. Ct. R. 47). The State has filed no response.

In 16CR8, Vaughn pled no contest to one count of nonresidential burglary. In
16CR628, Vaughn pled no contest to one count of forgery. In 16CR132, Vaughn pled no
contest to one count of theft. On December 19, 2016, the district court sentenced Vaughn
to 29 months' imprisonment in 16CR8; 14 months' imprisonment in 16CR628; and 19
months' imprisonment in 16CR132. The district court ordered the sentences to run
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consecutive, but in all three cases the court granted Vaughn's request for a dispositional
departure to probation for 24 months to be supervised by community corrections.

At a hearing on September 18, 2018, Vaughn stipulated to violating the conditions
of his probation by failing to report as directed, by failing to complete treatment, and by
committing a new misdemeanor offense. Vaughn asked the district court either to
reinstate his probation or to modify his sentences. But because Vaughn had committed a
new offense while on probation and because his probation was originally granted as the
result of a dispositional departure, the district court revoked Vaughn's probation in each
case and ordered him to serve his original sentences. Vaughn timely appealed and the
cases have been consolidated on appeal.

On appeal, Vaughn claims the district court "abused its discretion by imposing the
prison sentence without modification and by imposing the sentence when probation
sanctions remained an available alternative because [he] demonstrated a continuing need
for drug treatment." But Vaughn concedes that the district court did not have to impose
an intermediate sanction in this instance because he had committed a new offense while
on probation and because his probation was originally granted as the result of a
dispositional departure.

The procedure for revoking a defendant's probation is governed by K.S.A. 2018
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
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K.S.A. 2018 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).

As Vaughn concedes, the district court did not have to impose an intermediate
sanction in this instance because he had committed a new crime while on probation. See
K.S.A. 2018 Supp. 22-3716(c)(8)(A). Also, the district court did not have to impose an
intermediate sanction because Vaughn's probation was originally granted as the result of
a dispositional departure. See K.S.A. 2018 Supp. 22-3716(c)(9)(B).

Here, the district court showed leniency to Vaughn by granting him a dispositional
departure to probation even though he had been convicted of felonies in three separate
cases. Vaughn may have showed a continuing need for drug treatment, but he squandered
his chance for treatment while on probation. The district court's decision to revoke
Vaughn's probation was not arbitrary, fanciful, or unreasonable, and it was not based on
an error of fact or law. Vaughn has failed to show that the district court abused its
discretion by revoking his probation and ordering him to serve his original sentences.

Vaughn also claims the district court erred by not modifying his original sentences
when it revoked his probation. Under K.S.A. 2018 Supp. 22-3716(c)(1)(E), upon
revoking a defendant's probation, the court may require the defendant to serve the
original sentence imposed or any lesser sentence. "An appellate court reviews the district
court's decision to deny a defendant's request for lesser sentence upon the revocation of
probation for an abuse of discretion." State v. Reeves, 54 Kan. App. 2d 644, Syl. ¶ 3, 403
P.3d 655 (2017), rev. denied 307 Kan. 992 (2018). Vaughn has not tried to show how the
district court abused its discretion by refusing his request to impose a lesser sentence at
the probation revocation hearing, so he fails to meet his burden of showing any error. See
Stafford, 296 Kan. at 45.

Affirmed.