State v. Barney

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NOT DESIGNATED FOR PUBLICATION

No. 116,627

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ADAM M. BARNEY,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed April 14, 2017.
Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2016 Supp. 21-6820(g) and (h).

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

Per Curiam: Adam M. Barney appeals the district court's decision revoking his
probation and ordering him to serve his underlying sentence. We granted Barney's motion
for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2017
Kan. S. Ct. R. 48). The State has filed a response and agrees that summary disposition is
appropriate.

On April 28, 2015, Barney pled guilty to one count of domestic battery after two
prior convictions within the last 5 years in violation of K.S.A. 2013 Supp. 21-5414(a)(2),
(b)(3). On June 26, 2015, the district court sentenced Barney to 12 months in jail and
ordered him to serve 90 days before being released to a 12-month probation term.

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On September 16, 2015, a warrant was filed alleging that Barney had violated the
conditions of his probation. At a hearing on October 23, 2015, Barney admitted to several
technical violations. The district court ordered a 30-day jail sanction followed by
inpatient treatment. Barney concurred with this disposition.

On May 20, 2016, a warrant was filed again alleging that Barney had violated the
conditions of his probation. A hearing was held on July 11, 2016, and Barney admitted to
failing to report to his probation officer. Noting that Barney had made some progress in
the case, the district court nonetheless made the "public safety and welfare of offender"
findings pursuant to K.S.A. 2016 Supp. 22-3716(c)(9). The district court revoked
Barney's probation and imposed the underlying sentence. Barney timely appealed.

On appeal, Barney argues that the district court "failed to make particularized
findings under K.S.A. 22-3716(c)(9) to bypass intermediate sanctions." However, Barney
acknowledges that pursuant to K.S.A. 2016 Supp. 22-3716(b)(3)(B)(iii) and (c)(1) the
district court was not required to make such findings to revoke Barney's probation based
on his conviction of domestic battery after two prior convictions within the last 5 years.
The State agrees that the district court was not required to make particularized findings to
bypass intermediate sanctions due to Barney's conviction of domestic battery.

The procedure for revoking an offender's probation or assignment to community
corrections is governed by K.S.A. 2016 Supp. 22-3716. Traditionally, once a defendant
on probation violated that probation, the district court had the discretion to revoke the
probation and order that the defendant serve the underlying sentence. State v. Brown, 51
Kan. App. 2d 876, 879, 357 P.3d 296 (2015), rev. denied 304 Kan. 1018 (2016). 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
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burden of showing such an abuse of discretion. State v. Stafford, 296 Kan. 25, 45, 290
P.3d 562 (2012).

In 2013, our legislature limited a district court's discretion to order that a probation
violator serve his or her underlying sentence by amending K.S.A. 22-3716. The statute as
amended provides that after finding that the conditions of probation have been violated,
the court is to apply graduated intermediate sanctions ranging from modification of the
defendant's release conditions to brief periods of confinement in jail that increase in
length depending on the number of lesser sanctions already imposed by the court. See
K.S.A. 2016 Supp. 22-3716(c)(1)(A)-(D). Pursuant to K.S.A. 2016 Supp. 22-3716(c)(9),
the court may revoke probation without having previously imposed an intermediate
sanction if the court finds and sets forth with particularity the reasons for finding that the
safety of the members of the public will be jeopardized or that the welfare of the offender
will not be served by such a sanction. Whether the district court's reasons are sufficiently
particularized as required by statute is a question of law over which an appellate court has
unlimited review. See State v. McFeeters, 52 Kan. App. 2d 45, 47-49, 362 P.3d 603
(2015).

However, the requirement for a district court to consider intermediate sanctions
before revoking a defendant's probation does not apply if the defendant was convicted of
a felony specified in K.S.A. 2016 Supp. 21-6804(i)(1), which includes a conviction of
domestic battery in violation of K.S.A. 2016 Supp. 21-5414(b)(3). See K.S.A. 2016
Supp. 22-3716 (b)(3)(B)(iii) and (c)(1). As Barney acknowledges, the district court was
not required to consider intermediate sanctions before revoking his probation due to his
underlying conviction of domestic battery after two prior convictions within the last 5
years. Thus, we do not need to address whether the district court made particularized
findings under K.S.A. 2016 Supp. 22-3716(c)(9) to bypass intermediate sanctions.

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Here, Barney was convicted of domestic battery after two prior convictions within
the last 5 years. The record reflects that Barney twice violated the conditions of his
probation. Although Barney made some progress while on probation, he fails to establish
how the district court abused its discretion in revoking his probation and ordering him to
serve his underlying prison sentence. The district court's decision to revoke Barney's
probation was not arbitrary, fanciful, or unreasonable, and it was not based on an error of
fact or law. Thus, we conclude the district court did not err in revoking Barney's
probation and ordering him to serve his underlying sentence.

Affirmed.