Opinion
111,890.
07-17-2015
STATE of Kansas, Appellee, v. Gus HANKINS, Jr., Appellant.
Michael P. Whalen and Krystle M.S.Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Michael P. Whalen and Krystle M.S.Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant.
Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., SCHROEDER and GARDNER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Gus Hankins, Jr., appeals the revocation of his probation based upon the commission of two new offenses. Hankins claims the district court abused its discretion by not reinstating his probation and/or modifying his sentence to benefit offender reformation. We find no abuse of discretion by the district court and affirm the revocation of Hankins' probation.
Hankins pled guilty pursuant to plea negotiations to 1 count of aggravated burglary and no contest to 13 other charges, including 6 counts of burglary, 6 counts of theft, and 1 count of attempted burglary. As part of the plea agreement, the State agreed to recommend the mitigating sentence in the guideline box, to run all counts concurrently, and to jointly request a dispositional departure to probation with the Community Corrections Residential Program. Pursuant to the plea agreement and based on Hankins' criminal history score of A, the district court sentenced Hankins to a total underlying prison term of 122 months with 24 months' postrelease supervision and then granted Hankins' request for a dispositional departure to supervised probation for a term of 36 months.
Approximately 2 years later, the State filed a motion to revoke Hankins' probation for committing new offenses of possession of cocaine and possession of drug paraphernalia. Hankins requested an evidentiary hearing. An evidentiary hearing was held on October 26, 2012. The State presented testimony from Wichita Police Department Officer Jon Groh. Officer Groh testified he stopped Hankins after observing him walking in the street when there was a sidewalk available in violation of a city ordinance. Officer Groh testified Hankins' demeanor was resistive and hostile. Hankins repeatedly stated the officers had no reason to stop him and kept turning away from them during their conversation. Concerned about how agitated Hankins was acting, Officer Groh began to pat down Hankins.
Officer Groh testified that during the pat down he discovered a small airline liquor bottle with a spoon and syringe taped to it. Officer Groh placed Hankins under arrest for possession of drug paraphernalia. After handcuffing Hankins, Officer Groh continued his search and found a rock which was determined by field and laboratory tests to be crack cocaine. The State offered Exhibit 1, the laboratory report on the crack cocaine; Exhibit 2, the rock of crack cocaine; and Exhibit 3, the spoon and the liquor bottle, into evidence. There was no objection by the defense. The syringe was destroyed for health reasons.
The district court found that by a preponderance of the evidence, the State proved Hankins had violated the terms and conditions of his probation. The district court proceeded to disposition. Hankins argued for reinstatement to probation, noting he had successfully completed residential Community Corrections and was complying with treatment through ComCare for drug addiction and mental health issues. Hankins argued this was the first time he had ever addressed his drug addictions and was making progress. The State moved for imposition of Hankins' original sentence, noting Hankins' criminal history of A and that he committed this offense while on parole in two other cases. The district court also noted that while on probation in this case Hankins had prior technical probation violations for drug use.
The district court found that despite being given opportunities to reform following technical violations for drug use in this case, Hankins continued to violate the conditions of his probation. Furthermore, the district court found there was a community safety risk based on Hankins' prior crimes for residential burglary. The district court ultimately found Hankins was not serious about abstaining from drugs and imposed the balance of his remaining sentence.
Hankins then moved for a sentencing departure modification to benefit offender reformation. The district court denied the request based on its prior findings, the nature of the crimes, and the amount of restitution that accrued from Hankins' actions. The district court concluded Hankins' sentence was fair and it would be a danger to the community to modify Hankins' sentence.
On appeal, Hankins claims the district court abused its discretion when it found the State had met its burden to establish a violation at the evidentiary hearing and revoked Hankins' probation. A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). After a review of the entire record, we find no abuse of discretion. The State admitted into evidence with no objection by defense a laboratory report showing the rock seized was in fact cocaine, the rock of crack cocaine, and the drug paraphernalia. Substantial evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). There was substantial competent evidence to support the district court's findings that Hankins had violated the conditions of his probation by possession of crack cocaine and drug paraphernalia. The district court did not abuse its discretion when it revoked Hankins' probation, denied his sentence modification motion, and required him to serve the original sentence of 122 months' imprisonment.
Affirmed.