State v. Wilson

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NOT DESIGNATED FOR PUBLICATION

No. 116,041

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TRUTH H. WILSON,
Appellant.


MEMORANDUM OPINION

Appeal from Riley District Court; DAVID L. STUTZMAN, judge. Opinion filed February 24, 2017.
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: Truth H. Wilson appeals the district court's decision revoking his
probation and ordering him to serve his underlying prison sentence. We granted Wilson's
motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A
(2017 Kan. S. Ct. R. 48). The State has filed a response and requested that the district
court's judgment be affirmed.

On February 22, 2012, Wilson pled no contest to one count of attempted
aggravated robbery. On April 2, 2012, the district court sentenced Wilson to 36 months'
imprisonment but granted probation with community corrections for 36 months.

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On December 10, 2014, the State filed a motion alleging that Wilson had violated
the conditions of his probation because he had failed to report to his supervisor for 3
months, his last known residence was vacant, and his whereabouts were unknown. At a
hearing on May 13, 2016, Wilson admitted to the probation violations. The State
presented evidence at the hearing through the testimony of a community corrections
supervisor to establish that Wilson had absconded from his probation. After considering
the evidence and hearing arguments from counsel, the district court took the matter under
advisement. At a hearing on May 20, 2016, the district court found that Wilson had
"actively avoid[ed] being supervised" for a year and a half and the "absconder bypass"
applied. The district court revoked Wilson's probation and ordered that he serve his
underlying prison sentence. Wilson timely appealed.

On appeal, Wilson argues that the district court "abused its discretion by revoking
probation and ordering the underlying prison sentence." Wilson acknowledges that the
decision to revoke probation rests within the district court's sound discretion.

The procedure for revoking an offender's probation or assignment to community
corrections is governed by K.S.A. 22-3716. Traditionally, once a defendant on probation
violated that probation, the district court had the discretion to revoke the probation and
order that the defendant serve the underlying sentence. State v. Brown, 51 Kan. App. 2d
876, 879, 357 P.3d 296 (2015), rev. denied 304 Kan. 1018 (2016). 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 an
abuse of discretion. State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).

In 2013, our legislature limited a district court's discretion to order that a probation
violator serve his or her underlying sentence by amending K.S.A. 22-3716. The statute as
amended provides that after finding that the conditions of probation have been violated,
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the court is to apply graduated intermediate sanctions ranging from modification of the
defendant's release conditions to brief periods of confinement in jail that increase in
length depending on the number of lesser sanctions already imposed by the court. See
K.S.A. 2016 Supp. 22-3716(c)(1)(A)-(D). Pursuant to K.S.A. 2016 Supp. 22-
3716(c)(8)(B)(i), if the offender absconds from supervision while he or she is on
probation or assigned to community corrections, the court may revoke probation or
assignment to community corrections without having previously imposed an intermediate
sanction. If the district court finds that a defendant has absconded from probation, the
appellate court reviews that finding to determine whether it is supported by substantial
competent evidence. State v. Raiburn, 289 Kan. 319, 332, 212 P.3d 1029 (2009).

Here, after considering evidence presented by the State, the district court found
that Wilson had actively avoided being supervised for a year and a half and that he had
absconded from probation. Wilson acknowledges that pursuant to K.S.A. 2016 Supp. 22-
3716(c)(8)(B)(i), the court may revoke probation without having previously imposed an
intermediate sanction if the offender absconds from supervision while on probation.
Significantly, Wilson does not challenge on appeal whether the district court's absconder
finding was supported by substantial competent evidence. The district court was not
required to impose an intermediate sanction in this instance, and the court's decision to
revoke Wilson's probation was not arbitrary, fanciful, or unreasonable. Thus, we
conclude the district court did not err in revoking Wilson's probation and ordering him to
serve his underlying prison sentence.

Affirmed.