Opinion
112,117.
05-08-2015
STATE of Kansas, Appellee, v. Anthony W. PENNINGTON, Appellant.
MEMORANDUM OPINION
LEBEN, J.
Anthony Wayne Pennington was serving probation for possession of methamphetamine when he was arrested for domestic battery in October 2013. He pled guilty to the new charge, and his plea agreement stated that the court would revoke his probation. At the probation-revocation hearing, Pennington admitted to violating his probation by committing new crimes and missing a drug-treatment session. The district court revoked Pennington's probation and imposed his original sentence of 11 months in prison.
Pennington appeals, arguing that the district court should have reinstated his probation or given him a modified, lessened prison sentence. Pennington claims that the district court abused its discretion by not doing so. But it's within the district court's discretion whether to revoke probation once a violation has been established. By the time Pennington committed domestic battery, he had already been given a second and third chance on probation after earlier probation violations. On the facts of this case, we find no abuse of discretion in revoking Pennington's probation and requiring that he serve the underlying prison term on his third violation.
Factual and Procedural Background
Pennington was charged with possession of methamphetamine, possession of drug paraphernalia, and domestic battery after the police were called to his home on May 22, 2012, for a domestic disturbance. In a plea agreement, Pennington pled guilty to the first charge, and the State dropped the remaining two counts. The district court sentenced Pennington to 18 months of probation with an underlying prison sentence of 11 months that he would have to serve if he did not successfully complete probation. As conditions of his probation, Pennington was required to report to an intensive-supervision probation officer, submit to random drug and alcohol testing, successfully complete drug treatment, obey all laws, and pay court and legal fees he owed in two cases.
In August 2012, the State filed a motion to revoke Pennington's probation, alleging that he had violated his probation when he was arrested for assault and domestic battery. The district court revoked his probation, ordered that he serve 7 days in jail, and reinstated his probation with primarily the same conditions as before.
Nearly a year later, in July 2013, the State again filed a motion to revoke Pennington's probation. The State alleged that he had violated his probation by not paying court costs, missing appointments with his probation officer, testing positive for methamphetamine on two occasions, admitting to methamphetamine use on a third occasion, and missing several drug-treatment appointments. Pennington admitted that he had violated probation. The court again revoked his probation, this time imposing a 6–day jail sentence before returning him to probation.
In October 2013, the State filed its third motion to revoke Pennington's probation, citing another arrest for domestic battery as well as a missed drug-treatment session. Pennington pled guilty to the domestic-battery charge, and the plea agreement in that case stated that the district court would revoke his probation in this case.
At the probation-revocation hearing, Pennington admitted to violating his probation. The State asked the court to impose the original sentence. The judge then asked for Pennington's response; his attorney replied, “Judge, there's nothing that I can do to ameliorate that.” The court ordered Pennington to serve his underlying sentence of 11 months in prison with 12 months of supervision once he is released. Pennington has appealed to this court.
Analysis
On appeal, Pennington argues that the district court abused its discretion when it revoked his probation and imposed his underlying prison sentence. Though he admitted to violating his probation, he points out that the judge had several options, including reinstating his probation or imposing a modified sentence. He argues that choosing the harshest penalty—the full prison term—was not warranted here.
The legal rules applicable to this appeal are straightforward. A district court's decision to revoke probation must be based on a factual finding that a condition of probation has been violated. Once a violation has been established, the decision to revoke probation has been traditionally considered within the discretion of the district court. State v. Skolaut, 286 Kan. 219, 227–28, 182 P.3d 1231 (2008) ; see State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). Accordingly, we review the district court's decision to revoke his probation and order him to serve the prison sentence for an abuse of discretion. 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).
By pleading guilty to the October 2013 domestic-battery charge, Pennington admitted that he had violated his probation by not obeying the law. And he made this admission again explicitly at his probation-revocation hearing. Thus, whether to revoke the probation was a discretionary call for the district court. We find nothing unreasonable about its decision. The district court had revoked and reinstated Pennington's probation twice before and had warned him about violating probation again. At the hearing revoking his probation for the second time, the judge told him, “You understand, if you continue on this route, we're going to send you to prison. That's just that plain and simple.” Yet Pennington continued to miss drug treatment and obtained another domestic-battery charge—an indication that he posed a risk to others' safety while on probation. It was therefore not unreasonable for the district court to conclude that Pennington was not amenable to probation and to revoke it.
Choosing to impose Pennington's original sentence rather than reinstate the probation or impose a modified sentence was also within the district court's discretion. At his hearing, Pennington did not recommend a different course of action for the district court to follow, and he does not offer any reason why the court should have considered an alternative.
We note that a 2013 statutory change limited the district court's discretion in probation-revocation proceedings: K.S.A.2014 Supp. 22–3716(b) –(c) now generally requires that the district court impose intermediate sanctions before ordering that the defendant serve the underlying prison term unless the defendant has committed a new crime. Pennington does not argue in his motion for summary disposition that the district court violated this statute. Even if we assume that it applied to Pennington's case, it would not affect our analysis because when the district court revoked his probation, Pennington had admitted to committing a new crime. See K.S.A.2014 Supp. 22–3716(c)(8) (“If the offender commits a new felony or misdemeanor ... while the offender is on probation, ... the court may revoke the probation ... without having previously imposed a sanction....”).
On Pennington's motion, we accepted his appeal for summary disposition under K.S.A.2014 Supp. 21–6820(g) and (h) and Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 62). We have reviewed the record that was available to the sentencing court, and we find no error in its decision to revoke Pennington's probation.
The judgment of the district court is therefore affirmed.