Opinion
No. 111436.
04-03-2015
STATE of Kansas, Appellee, v. Shayne THOMAS–RANDALL, Appellant.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
LEBEN, J.
Shayne Thomas–Randall received probation following his convictions for burglary, felony theft, and misdemeanor theft. He then violated several of his probation conditions. He admitted that he had failed to report to his probation officer, tested positive for amphetamines, associated with a person of disreputable character, and been charged with new crimes. As a result, the judge revoked his probation and ordered him to serve a modified sentence of 23 months in prison.
Thomas–Randall has appealed to this court, arguing that it was unreasonable for the district court to impose a prison sentence because he needs substance-abuse treatment that might not be available in prison but would be available on probation. But once the district court determines that the conditions of probation have been violated, it's within that court's discretion whether to revoke probation. Even though Thomas–Randall's criminal activities and probation violations may stem from drug addiction, we find no abuse of discretion in revoking his probation on the facts presented here.
Factual and Procedural Background
Thomas–Randall pled guilty to five counts of burglary, one count of felony theft, and four counts of misdemeanor theft for offenses that occurred in September and December 2010. The district court sentenced him to 24 months of probation with an underlying sentence of 34 months in prison and 12 months in jail to be served after the prison term. The district court later corrected Thomas–Randall's underlying prison sentence, changing it to 30 months to fix an error with its application of a rule generally called the “double rule.” The rule limits the total sentence to no more than double the sentence on the most serious offense—here, a 15–month sentence on the first burglary count. See K.S.A. 21–4720(b)(4).
In May 2012, Thomas–Randall admitted that he had violated the terms of his probation by failing to report to his probation officer and failing to notify the officer that he had changed his address. He asked the court to allow him to remain on probation in order to continue his mental-health treatment at ComCare. The district court ordered him to serve a jail sanction but reinstated his probation.
In August 2012, Thomas–Randall again admitted that he had violated the terms of his probation by failing to report to his probation officer. At the probation-revocation hearing, his probation officer stated that he had not been complying with the program at ComCare, which required him to check in daily. She said he “would not meet with his therapist” and had once left ComCare while his case manager—who was helping him obtain disability—went to get her calendar to schedule an appointment with him. Thomas–Randall told the court that he had recently gotten medication from ComCare.
The district court told Thomas–Randall that it was taking him at his word that he had tried to address his underlying mental-health issues by getting medication but asked that his probation officer confirm that he had recently been to ComCare. The district court reinstated Thomas–Randall's probation, requiring that he take his medication as a condition of probation. The district court warned him that he would not be able to stay on probation if he continued to fail to report to his probation officer.
In October 2012, Thomas–Randall admitted to violating his probation a third time—by failing to report to his probation officer, testing positive for amphetamines, associating with a person of disreputable character, and being charged with theft and interference with a law-enforcement officer. Thomas–Randall requested that the district court reinstate his probation and place him in an intensive drug-treatment facility. At the probation-revocation hearing, his attorney told the court that he was on probation because he had committed crimes to obtain money for drugs.
His probation officer also spoke at the hearing. She told the court that she had checked on whether he had gone to ComCare for medication before the August 2012 probation-revocation hearing and found that he had not. He had made appointments but never showed up for them. The district court denied Thomas–Randall's request for probation with intensive drug treatment, noting that he had not taken the opportunities provided to him. The court imposed a modified sentence of 23 months in prison.
Thomas–Randall then appealed to this court.
On appeal, Thomas–Randall argues that the district court should not have imposed a prison sentence after revoking his probation because his mistakes on probation were caused by his substance-abuse problems and incarceration may prevent him from receiving treatment. He contends that it is unreasonable to incarcerate—at great cost to Kansas taxpayers—a nonviolent offender who suffers from an addiction when the offender could receive treatment while on probation.
The legal rules applicable to his 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 is 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). 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). As the person asserting that the district court abused its discretion, Thomas–Randall has the burden of showing that the district court abused its discretion in this case. State v. Burnett, 300 Kan. 419, 449, 329 P.3d 1169 (2014).
It's clear that Thomas–Randall suffers from both mental-health and substanceabuse issues. His probation officer told the district court that he has significant mentalhealth issues, and the district court indicated that a mental-health court—although unavailable—would be the best place for Thomas–Randall because of those issues and his difficulties staying on the medications he needs to manage them. In addition, ThomasRandall violated probation by testing positive for amphetamines, and Thomas–Randall argued that he had committed his underlying crimes because he was “looking for money to purchase drugs.”
But here the district court gave Thomas–Randall a chance at getting treatment by giving him probation in the first place and by allowing him to continue on probation after previous violations. Thomas–Randall failed to take advantage of the treatment options he had while on probation and failed to heed the district court's warnings that he would not be permitted to remain on probation if he failed to report to his probation officer. We recognize that substance-abuse and mental-health issues can be great barriers to success on probation but find that it was reasonable for the district court to impose a reduced prison sentence after Thomas–Randall was charged with new crimes and the district court had already reinstated his probation twice. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006).
Thomas–Randall expresses concerns about not having access to the treatment he needs while in prison. On the record before us, we cannot address the availability of treatment programs for Thomas–Randall in prison. Thomas–Randall also expresses concern about the cost of incarcerating nonviolent offenders with substance-abuse and mental-health problems; that is a policy question for legislative consideration. We are called upon to address a legal question: Did the district court have discretion to revoke Thomas–Randall's probation and send him to prison? Thomas–Randall conceded that he had violated his probation; the violations were significant ones, and the district court has discretion to revoke probation when a violation is established. K.S .A.2010 Supp. 22–3716(b) ; Skolaut, 286 Kan. at 227–28. Because a reasonable person could agree with the district court's decision to revoke Thomas–Randall's probation and impose a reduced prison sentence, we find that it was not an abuse of that discretion.
The judgment of the district court is affirmed.