State v. Bell

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NOT DESIGNATED FOR PUBLICATION

No. 120,658

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JASON W. BELL,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed August 30, 2019.
Affirmed.

Submitted by the parties for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and
(h).

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

PER CURIAM: Jason W. Bell appeals the district court's revocation of his probation
and imposition of a reduced prison sentence. We granted Bell's motion for summary
disposition pursuant to Supreme Court Rule 7.041A (2019 Kan. S. Ct. R. 47). The State
has responded by not objecting to summary disposition but requests that the district court
be affirmed. After a review of the record, we agree with the State and affirm the district
court's judgment.

After a bench trial upon stipulated facts, the district court found Bell guilty of one
count of offender registration violation, a severity level 5 person felony. On August 2,
2016, the district court sentenced Bell to a controlling prison sentence of 114 months,
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although the journal entry mistakenly contains 120 months. However, the district court
granted Bell's motion for dispositional departure and placed him on probation for a term
of 36 months.

Not long after Bell had been placed on probation, on February 23, 2017, the State
sought to revoke his probation, alleging he had committed the new crime of aggravated
escape from custody in Cowley County District Court case 17CR88W. At the probation
violation hearing conducted on January 2, 2019, Bell stipulated to committing this new
crime but asked for another opportunity at probation, explaining that he had left the
Winfield Correctional Facility so that he could seek treatment for his Hepatitis C. The
district court was unpersuaded by Bell's argument, noting that other prisoners do not
escape from custody due to health issues and that a person who is on probation for a
serious felony offense cannot be allowed to commit a new felony while on probation. As
a result, the district court revoked Bell's probation but imposed a reduced sentence of 75
months in prison.

On appeal, Bell argues the district court erred in revoking his probation and
ordering him to serve his prison sentence without first exhausting the intermediate
sanctions. Once a probation violation has been established, the decision to revoke
probation is within the discretion of the district court. State v. Skolaut, 286 Kan. 219, 227,
182 P.3d 1231 (2008). A judicial action constitutes an abuse of discretion if (1) no
reasonable person would take the view adopted by the trial court; (2) it is based on an
error of law; or (3) it is based on an error of fact. State v. Marshall, 303 Kan. 438, 445,
362 P.3d 587 (2015). Bell bears the burden of showing an abuse of discretion. See State
v. Rojas-Marceleno, 295 Kan. 525, 531, 285 P.3d 361 (2012).

The district court's discretion to revoke a defendant's probation is limited by the
intermediate sanctions requirements outlined in K.S.A. 2018 Supp. 22-3716. Generally, a
district court is required to impose intermediate sanctions before revoking an offender's
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probation. See K.S.A. 2018 Supp. 22-3716(c); State v. Huckey, 51 Kan. App. 2d 451,
454, 348 P.3d 997, rev. denied 302 Kan. 1015 (2015). However, as Bell acknowledges,
there are exceptions that permit a district court to revoke probation without having
previously imposed the statutorily required intermediate sanctions, one of which is when
the offender commits a new crime while on probation. See K.S.A. 2018 Supp. 22-
3716(c)(8)(A). Another exception permitting revocation without imposing sanctions is if
the offender's probation was "originally granted as the result of a dispositional departure."
K.S.A. 2018 Supp. 22-3716(c)(9)(B).

As it is undisputed that Bell committed a new felony offense while on probation
and that he was given the opportunity at probation as a result of a dispositional departure,
it is clear the district court had the authority to revoke his probation without imposing any
intermediate sanctions. It is also clear from the record that the district court considered
Bell's arguments in mitigation, particularly his need for treatment for his serious health
condition, and rejected them while also noting that Bell had committed a serious felony
offense while on probation for another crime. We have no trouble concluding that a
reasonable person could agree with the district court's rationale. Accordingly, the district
court did not abuse its discretion in revoking Bell's probation and imposing a reduced
prison sentence.

Affirmed.