State v. Barnes

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NOT DESIGNATED FOR PUBLICATION

No. 118,951

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

LARRY D. BARNES,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed October
19, 2018. Affirmed in part and dismissed in part.

Submitted for summary disposition pursuant to K.S.A. 2017 Supp. 21-6820(g) and (h).

Before MALONE, P.J., LEBEN and POWELL, JJ.

PER CURIAM: Larry D. Barnes appeals the district court's decision revoking his
probation and ordering him to serve his underlying prison sentence. We granted Barnes'
motion for summary disposition under Kansas Supreme Court Rule 7.041A (2018 Kan.
S. Ct. R. 47). The State has requested that the district court's judgment be affirmed.

On September 21, 2017, Barnes pled guilty to one count of possession of cocaine
and one count of felony driving under the influence (DUI). On November 3, 2017, the
district court sentenced Barnes to 34 months' imprisonment for the possession of cocaine
conviction and a consecutive term of 12 months in jail for the DUI conviction. The
district court granted a dispositional departure to probation for 12 months.
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On January 5, 2018, Barnes admitted to violating his probation by testing positive
for cocaine and alcohol and by failing to set up his "soberlink house arrest" program as
ordered by the court. Barnes asked to receive an intermediate sanction and to be placed
back on probation. The district court denied this request, revoked Barnes' probation, and
ordered him to serve his original sentence, noting that Barnes had originally received a
dispositional departure to probation. Barnes then requested a "durational departure" or
lesser sentence, once his probation had been revoked. The district court denied this
request, but the court authorized Barnes to serve his 12-month jail sentence in work
release. Barnes timely appealed.

On appeal, Barnes claims the district court "abused its discretion in revoking his
probation and ordering him to serve his original sentence without first imposing an
intermediate sanction." But Barnes admits the district court could bypass an intermediate
sanction because he originally received a dispositional departure to probation.

The procedure for revoking a defendant's probation is governed by K.S.A. 2017
Supp. 22-3716. Generally, once there has been evidence of a violation of the conditions
of probation, the decision to revoke probation rests in the district court's sound discretion.
State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). 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
such an abuse of discretion. State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012). A
district court abuses its discretion by committing an error of law in the application of
K.S.A. 2017 Supp. 22-3716 when revoking a defendant's probation. See State v. Still, No.
112,928, 2015 WL 4588297, at *1 (Kan. App. 2015) (unpublished opinion).

K.S.A. 2017 Supp. 22-3716 generally provides that once a defendant has violated
the conditions of probation, the district court must apply graduated intermediate sanctions
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before the court can revoke probation and order the defendant to serve the sentence
imposed. See K.S.A. 2017 Supp. 22-3716(c)(1)(A)-(D). But under K.S.A. 2017 Supp. 22-
3716(c)(9)(B), the court may revoke an offender's probation without imposing an
intermediate sanction if the probation was granted as the result of dispositional departure.

Here, the district court bypassed intermediate sanctions because Barnes originally
received a dispositional departure to probation. The district court had warned Barnes that
he would receive only one chance at probation. The district court's decision to revoke
Barnes' probation was not arbitrary, fanciful, or unreasonable, and it was not based on an
error of fact or law. Barnes has failed to show that the district court abused its discretion
by revoking his probation and ordering him to serve his underlying sentence.

Barnes also asserts that the district court abused its discretion by failing to grant a
"downward modification" of his sentence at the probation revocation hearing. This court
has jurisdiction to address this claim. State v. Weekes, 308 Kan. ___, No. 115,739, 2018
WL 4841565, at *2-3 (2018). However, Barnes fails to show that the district court abused
its discretion by not modifying the original sentence. See State v. Reeves, 54 Kan. App.
2d 644, Syl. ¶ 3, 403 P.3d 655 (2017) (holding that appellate court reviews district court's
decision to deny defendant's request for lesser sentence upon the revocation of probation
for an abuse of discretion), rev. denied 307 Kan. 992 (2018). The district court showed
leniency by placing Barnes on probation in the first place. Less than two months later,
Barnes violated the probation by testing positive for cocaine and alcohol and by failing to
go on house arrest. Still, the district court showed further leniency by authorizing work
release for the jail portion of Barnes' sentence.

Finally, Barnes claims the district court "violated his rights under Apprendi v. New
Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), when it used his prior
criminal history to increase his sentence without requiring the State to prove that criminal
history to a jury beyond a reasonable doubt." But Barnes did not timely appeal his
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sentence, imposed on November 3, 2017. See K.S.A. 2017 Supp. 22-3608(c); State v.
Inkelaar, 38 Kan. App. 2d 312, 317-18, 164 P.3d 844 (2007) (holding that defendant's
notice of appeal was timely only as to his probation revocation and not as to his original
sentence), rev. denied 286 Kan. 1183 (2008). Because Barnes did not timely appeal his
sentence, this court lacks jurisdiction to address his sentencing issue. But even if we had
jurisdiction to address the issue, we note that our Supreme Court has resolved this issue
contrary to Barnes' position in State v. Ivory, 273 Kan. 44, 46-47, 41 P.3d 781 (2002).

Affirmed in part and dismissed in part.