Opinion
111,883 111,884.
07-02-2015
STATE of Kansas, Appellee, v. Steven BURKE, Appellant.
Corrine E. Gunning, Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Corrine E. Gunning, Kansas Appellate Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., HILL and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
This is a probation revocation case in which Steven Burke contends on appeal that the district court abused its discretion by revoking his probation and by imposing his underlying prison sentence. Because Burke admitted to violating the terms of his probation, we do not find the actions of the district court to constitute an abuse of discretion. Rather, we find that the district court's decision to revoke Burke's probation and to reinstate his underlying sentence to be reasonable under the circumstances presented. Thus, we affirm.
Facts
On February 22, 2011, Steven Burke pled guilty to criminal trespass and to possession of methamphetamine in Sedgwick County case No. 10–CR–3598. On January 4, 2012, the district court sentenced him to 18 months' probation—with an underlying prison term of 16 months—plus 6 months in county jail. Less than a year later, on January 26, 2012, Burke pled guilty to one count of theft in Sedgwick County case No. 1l–CR–3570. On February 28, 2012, the district court sentenced Burke to 12 months' probation with an underlying prison term of 8 months.
On July 24, 2012, the district court revoked and reinstated Burke's probation after he admitted to violating its terms. In addition, the district court extended Burke's probation for 18 months and ordered him to enter—and successfully complete—a residential community corrections drug treatment program. Unfortunately, Burke again violated the conditions of his probation by failing to follow staff instructions, possessing contraband, and signing out but never returning to the residential facility. As a result, the State charged Burke with aggravated escape and he pled guilty to the charge. Moreover, the State once again moved to revoke Burke's probation.
On August 1, 2013, the district court held a sentencing hearing in the new case and a probation revocation hearing in case Nos. 10–CR–3598 and 11–CR–3570. At the hearing, Burke admitted to the violations and his probation was revoked. Although Burke requested reinstatement, the district court concluded that it was in the best interests of Burke and the community to impose the underlying sentences. In reaching this conclusion, the district court considered Burke's lengthy drug history, his inability to remain sober, and his criminal record. The district court also noted that spending time in prison would provide Burke a long period of sobriety and implement a plan for sobriety while serving his sentence.
Analysis
On appeal, Burke contends the district court abused its discretion when it revoked his probation and imposed his underlying sentences. Though Burke acknowledges admitting to violating the conditions of his probation, he argues that his probation should have been reinstated or modified sentences should have been imposed. Regardless, Burke argues the harshest penalty—imposing his underlying sentences—was not warranted.
The law of probation revocation is well settled. Once there is evidence of a probation violation, the decision to revoke probation rests within the sound discretion of the district court. State v. Skolaut, 286 Kan. 219, 227, 182 P.3d 1231 (2008). “Unless the district court has made a legal or factual error, we may find an abuse of discretion only when no reasonable person would agree with the district court's decision. State v. McCullough, 293 Kan. 970, 981, 270 P.3d 1142 (2012) ; State v. Gumfory, 281 Kan. 1168, Syl. ¶ 1, 135 P.3d 1191 (2006).” State v. Pennington, No. 112,117, 2015 WL 2343307, at *2 (Kan.App.2015). Furthermore, Burke bears the burden of showing such abuse of discretion. See State v.. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).
Here, Burke admitted to violating the terms of his probation. Nevertheless, Burke argued that he finally realized the mistake that he had been making-continuing to use drugs. Accordingly, he argued that both he and the community would be better served by sending him to drug court instead of requiring him to serve his underlying sentences.
We note that a 2013 statutory change limits a district court's discretion in probation-revocation proceedings. In particular, K.S.A.2014 Supp. 22–3716(c)(8) now requires that the district court impose intermediate sanctions before ordering the defendant to serve the underlying prison sentence unless the defendant absconds or commits a new crime. Here, because the last violation was committed prior to the adoption of the 2013 amendments, they do not apply to Burke. See State v. Briggs, No. 110,825, 2015 WL 1636708, at *2 (Kan.App.2015) (unpublished opinion). Nevertheless, even if the 2013 amendments did apply, the district court would not have been required to impose intermediate sanctions because Burke absconded and committed a new crime.
Based on our review of the record, we find nothing unreasonable about the district court's decision. As the district court noted, it had previously revoked and reinstated Burke's probation. At the first revocation hearing, the district court advised Burke that the reinstatement was his last opportunity. Yet Burke continued to violate the conditions of his probation and even absconded from a residential treatment facility. We, therefore, conclude that it was reasonable for the district court to determine that Burke was not amenable to alternative dispositions.
Affirmed.