State v. Carignan

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NOT DESIGNATED FOR PUBLICATION

Nos. 119,191
119,192
119,193

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MICHAEL R. CARIGNAN,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed June 21,
2019. Affirmed.

Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.

Andrew R. Davidson, assistant district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., GREEN and POWELL, JJ.

PER CURIAM: Michael R. Carignan appeals the district court's revocation of his
probation and its imposition of his prison sentences in three cases. Carignan argues the
district court erred by failing to state with particularity its reasons for revoking probation
and by not imposing intermediate sanctions instead. In its response, the State contends
the district court was not required to make particularized findings nor was it required to
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impose intermediate sanctions because Carignan had committed new crimes while on
probation. We agree with the State and affirm.

Carignan pleaded no contest in three separate cases in May and July 2017. Given
the severity level of Carignan's crimes and his A criminal history score, the sentencing
guidelines placed Carignan's felony sentences in the presumptive prison category.
Ultimately, on July 21, 2017, the district court sentenced Carignan to an overarching
sentence in all three cases of 82 months in prison by running Carignan's sentences in each
case consecutively. However, the district court granted Carignan a downward
dispositional departure and placed him on probation from his sentences for a period of 18
months.

However, two days after sentencing, Carignan was accused of possessing
marijuana and drug paraphernalia. Ten days after sentencing, Carignan was accused of
burglary, theft, possession of marijuana, and possession of drug paraphernalia. In early
August 2017, Carignan was accused of burglary of a dwelling, theft by deception, and
making false information. The State filed its first motion to revoke Carignan's probation
on July 26, 2017, and then subsequently amended its motion three times to incorporate
the ongoing violations.

At a probation violation hearing for all three cases held on December 28, 2017, the
State presented evidence of Carignan's failure to maintain contact with community
corrections and his commission of new crimes. After hearing the evidence, the district
court stated:

"The Court is satisfied that the evidence that we heard today is sufficient to show
that it's more likely than not that Mr. Carignan was involved in illegal activity as alleged
in Count No. 2, that being possession of marijuana and drug paraphernalia on the 31st of
July and then Count No. 3, that being making false information on the 12th of August,
2017 and also Court's satisfied that it's more likely than not that Mr. Carignan failed to
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report to Community Corrections after he was released from jail on the 28th of July, so
he's violated his probation and probation is revoked. What should we do?"

The State argued that Carignan's repeated criminal conduct mere days after being
released on probation demonstrated he was a danger to the community. Carignan spoke
on his own behalf and told the district court about his progress in drug treatment while
incarcerated and his plans to continue treatment after release. He asked the district court
to impose a 120- or 180-day intermediate prison sanction instead, but he "recognize[d]
the legal basis to go ahead and execute the entirety of the underlying sentence." The
district court concluded by saying:

"Well, Mr. Carignan, you know, what you're saying today makes a lot of sense.
I'm sure that it is heartfelt. I don't doubt that you're telling the truth. We got some hard
facts here, though and one of the hard facts is I look back, you know, you have over 30
years of career in felony convictions. You have 61 prior convictions. You have 29 person
felonies and so that makes it pretty hard for me to explain why I wouldn't execute your
sentence. I mean, I don't think I could do that. You know, you got, you're clean today.
You've been clean. You're thinking straight but there has to have been times in the last 30
years where you should have, maybe you didn't but you should have recognized that
you're on the wrong path, so I don't think that I can do anything but execute your
sentence because, you know, it's—First of all, best predictor of future behavior is past
behavior. You got a heck of a record. Secondly, we have to kind of be consistent with
what we do for other folks and, you know, I've never had anybody with 29 prior
convictions before. I've had somebody with over 50 convictions but they were all, like,
shoplifting, misdemeanor so sentence will be executed in each case.

"I hope that when you go to DOC you take advantage of whatever programs they
have, come up with a plan. I can assure you that once you start drawing Social Security
life is not over. Some of us, they even forced us to take our Social Security and we're still
kicking."

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Carignan filed a notice of appeal in one case on January 12, 2018, and in his two
other cases on January 29, 2018. After a show cause order was issued questioning our
jurisdiction, we ultimately retained the appeals. Parenthetically, we note that on March
15, 2018, Carignan later pled no contest to possession of marijuana and making false
information in two new cases filed as a result of his criminal acts committed while on
probation.

Our standard of review of a district court's decision to revoke probation is well
settled. Once a probation violation has been established, the decision to revoke probation
lies within the sound discretion of the district court. See State v. Skolaut, 286 Kan. 219,
227, 182 P.3d 1231 (2008). Judicial discretion is abused if the action "(1) is arbitrary,
fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted
by the trial court; (2) is based on an error of law . . . ; or (3) is based on an error of fact."
State v. Jones, 306 Kan. 948, Syl. ¶ 7, 398 P.3d 856 (2017). Carignan bears the burden to
show an abuse of discretion by the district court. See State v. Rojas-Marceleno, 295 Kan.
525, 531, 285 P.3d 361 (2012).

However, the district court's discretion to revoke probation is limited by the
intermediate sanctions requirement outlined in K.S.A. 2018 Supp. 22-3716. Generally
speaking, a district court is required to impose intermediate sanctions before revoking an
offender's 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, there are
exceptions that permit a district court to revoke probation without having previously
imposed the statutorily required intermediate sanctions; one of those exceptions allows
the district court to revoke probation if it was "originally granted as the result of a
dispositional departure." K.S.A. 2018 Supp. 22-3716(c)(9)(B). Another is if the offender
commits a new crime while on probation. See K.S.A. 2018 Supp. 22-3716(c)(8)(A).

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Here, it is undisputed that Carignan was granted a dispositional departure to
probation and that he committed new crimes while on probation. Carignan ignores these
exceptions to the intermediate sanctions requirement and instead complains that the
district court failed to make particularized findings as required by K.S.A. 2018 Supp. 22-
3716(c)(9)(A). That provision allows the district court to bypass the intermediate
sanctions requirement if it makes the required particularized findings that the public's
safety will be jeopardized or that the offender's best interests will not be served by the
imposition of an intermediate sanction. Carignan argues that an intermediate sanction of
120 or 180 days would have been more appropriate.

The problem with Carignan's argument is that particularized findings were not
required in this instance because the district court already had the ability to bypass the
intermediate sanctions requirement: Carignan was originally placed on probation as a
result of a dispositional departure and Carignan committed new crimes while on
probation. Moreover, Carignan fails to persuade us that the district court abused its
discretion by failing to impose a 120- or 180-day intermediate prison sanction instead.
The district court cited Carignan's lengthy criminal history as the reason for revoking
probation. Given that history, Carignan cannot show that no reasonable person would
have agreed with the district court's decision to revoke his probation and order imposition
of his underlying sentence.

Affirmed.