State v. Baumann

1
NOT DESIGNATED FOR PUBLICATION

No. 114,868

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JOHN T. BAUMANN,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; ERIC R. YOST, judge. Opinion filed January 27, 2017.
Affirmed.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., ARNOLD-BURGER and BRUNS, JJ.

Per Curiam: John T. Baumann appeals the district court's decision to revoke his
probation and order to serve a modified prison sentence. Finding no error, we affirm the
district court.

On April 15, 2014, the Sedgwick County District Court entered a protective order
restricting Baumann from having any contact with his former girlfriend, Sara Beard. The
order specifically prohibited "personal contact, contact by telephone, written
correspondence, including electronic mail [e-mail] and/or instant messaging." That same
2
day, the State charged Baumann with one count each of burglary and violation of a
protective order, alleging that he had unlawfully entered Beard's residence with the intent
to commit a breach of privacy.

On April 28, 2014, Baumann made his first appearance on the charges and was
released on bond with the condition that he have no contact with Beard. On May 6, 2014,
the State filed a motion to revoke Baumann's bond, alleging that he had contacted Beard
numerous times via cell phone. The district court granted the State's motion and modified
the conditions of Baumann's bond by increasing the amount of the bond and adding a
requirement that Baumann be subjected to an electronic monitoring system.

On March 13, 2015, Baumann pled guilty to the charged crimes pursuant to a plea
agreement with the State. The district court sentenced Baumann to a 24-month term of
probation with an underlying controlling prison sentence of 21 months.

The State subsequently alleged Baumann violated the terms of his probation by
contacting Beard on June 8, 2015, and by testing positive for drug use on August 3, 2015.
At a probation revocation hearing, the State advised the court that Baumann had posted a
message on Beard's Pinterest account that said he "'loved her and didn't want any other
man loving her.'" Based on Baumann's failure to comply with the no-contact order, the
State asked the court to find that Baumann was a danger to the community under K.S.A.
2015 Supp. 22-3716(c)(9) and impose the underlying prison sentence. Baumann admitted
to both violations but requested reinstatement of his probation with electronic monitoring,
asserting that his behavior did not constitute a threat to community safety. The district
court rejected Baumann's request to reinstate his probation but instead of imposing the
original prison sentence of 21 months, the court imposed a modified prison sentence of
19 months. Specifically, the judge stated,

3
"Well, here's how I see it; she wouldn't have asked for the [protective order] in the first
place unless there was a problem. Then he violated the [order], which he pled guilty to in
March; and now here we are, he's still having trouble figuring it out.
"I don't know what Mr. Baumann is capable of or not. I don't know anything
about this relationship, but I do know that we all pick up the paper every day and read
that people who have these kinds of problems end up getting hurt; and it's my job to try to
protect the public as much as possible.
"I don't like sending people to prison for things that are not violent offenses. But
I have to tell you, if this was a family member of mine, I would be very, very concerned.
I'm surprised this gallery isn't packed with people who are concerned for this lady.
"I'm sorry. I'm going to revoke and impose. I'm going to make the finding on
public safety that the [district attorney] is asking me to make, and I'm going to impose the
original sentence."

Baumann appeals, arguing the district court abused its discretion by revoking his
probation and by imposing a prison sentence rather than giving him another chance at
probation.

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). But district courts are now required to first
impose intermediate sanctions before revoking an offender's probation and imposing the
underlying sentence, absent certain exceptions. See K.S.A. 2015 Supp. 22-3716(c). A
district court may revoke probation and impose the underlying sentence—without first
imposing an intermediate sanction—if the offender commits a new crime, absconds from
supervision, or if the court sets forth with particularity its reasons for finding the safety of
the public will be jeopardized or the welfare of the offender will not be served by an
intermediate sanction. K.S.A. 2015 Supp. 22-3716(c)(8)-(9). In this case, the district
court found that the public's safety would be jeopardized if Baumann was not sent to
4
prison. Baumann does not challenge the factual basis for the district court's findings
under K.S.A. 2015 Supp. 22-3716(c)(9).

Because the district court was not required to impose any of the intermediate
sanctions set forth in K.S.A. 2015 Supp. 22-3716(c), we review its decision to revoke
Baumann's probation for an abuse of discretion. Judicial discretion is abused if: (1) no
reasonable person would have taken the view adopted by the court; (2) the action was
based on an error of law; or (3) the action was based on an error of fact. State v. Mosher,
299 Kan. 1, 3, 319 P.3d 1253 (2014). The party alleging an abuse of discretion bears the
burden of proof. State v. Decker, 288 Kan. 306, 311, 202 P.3d 669 (2009).

Baumann contends that no reasonable person would agree with the district court's
ruling because his behavior was nonviolent and did not involve physical contact with
Beard. Baumann suggests that a more appropriate sanction would have been to reinstate
his probation with the addition of an electronic monitoring requirement, which would
have protected Beard while also providing him an opportunity to rehabilitate outside of
institutional confinement.

We find nothing unreasonable about the district court's decision here. Despite the
protective order prohibiting him from having any contact with Beard, Baumann was
charged with burglary and violating the protective order when he entered Beard's
residence without her permission. Baumann then violated the conditions of his bond by
contacting Beard numerous times via cell phone. Baumann pled guilty to the crimes and
was prohibited from contacting Beard as a condition of his probation. A month after he
was sentenced, Baumann posted a comment on Beard's Pinterest page. While Baumann
attempts to minimize his most recent action as nonviolent and nonphysical, this was not
an isolated incident. Given Baumann's apparent inability to abide by the district court's
no-contact orders, the district court could reasonably conclude that Baumann could pose
a danger to Beard and that Baumann was therefore no longer an appropriate candidate for
5
probation. Because Baumann was clearly not amenable to probation under these
circumstances, there was nothing arbitrary, fanciful, or unreasonable in the district court's
ruling revoking probation and imposing a sentence of imprisonment.

Affirmed.