State v. Clary

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NOT DESIGNATED FOR PUBLICATION

No. 120,018

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SHANE L. CLARY,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed April 19, 2019.
Affirmed in part and dismissed in part.

Submitted for summary disposition under K.S.A. 2018 Supp. 21-6820(g) and (h).

Before ARNOLD-BURGER, C.J., MALONE and LEBEN, JJ.

PER CURIAM: Shane L. Clary appeals the district court's decision revoking his
probation and ordering him to serve a modified prison sentence. We granted Clary's
motion for summary disposition under Kansas Supreme Court Rule 7.041A (2019 Kan.
S. Ct. R. 47). The State has filed no response.

On January 11, 2017, Clary pled guilty to one count of aggravated battery. On
March 28, 2017, the district court sentenced Clary to 71 months' imprisonment but
granted a dispositional departure to probation for 36 months to be supervised by
community corrections. Clary did not appeal his sentence.

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The State later filed three motions to revoke probation, with the district court
opting to impose sanctions on two occasions. On August 6, 2018, at a hearing on the third
motion to revoke probation, Clary admitted to violating his probation on several grounds,
including testing positive for the use of illegal drugs and failing to comply with mental
health treatment. The district court revoked Clary's probation but modified his sentence to
52 months' imprisonment. Clary timely appealed his probation revocation.

On appeal, Clary claims the district court "abused its discretion by imposing the
prison sentence when additional sanctions remained available." But Clary acknowledges
that under K.S.A. 2018 Supp. 22-3716(c)(9)(B), the district court did not have to consider
any intermediate sanctions in his case because his probation was originally granted as the
result of a dispositional departure.

The procedure for revoking a defendant's probation is governed by K.S.A. 2018
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. 2018 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).

Here, the district court granted Clary probation even though his conviction called
for presumptive imprisonment. The district court then gave Clary two more chances at
probation even though he was not following the conditions of his supervision. At the final
hearing, the judge stated, "I just can't do it again. Four times is not the charm." The
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district court's decision to revoke Clary's probation was not arbitrary, fanciful, or
unreasonable, and it was not based on an error of fact or law. Clary has failed to show
that the district court abused its discretion by revoking his probation and ordering him to
serve a modified prison sentence.

Finally, Clary claims the district court "erred in imposing a greater penalty [based
on his criminal history score] that was not charged in the complaint and proved to a jury
beyond a reasonable doubt." But Clary did not timely appeal his original sentence
imposed on March 28, 2017. See K.S.A. 2018 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 Clary 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
Clary's position in State v. Ivory, 273 Kan. 44, 46-47, 41 P.3d 781 (2002).

Affirmed in part and dismissed in part.