State v. Emery

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NOT DESIGNATED FOR PUBLICATION

No. 114,368

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

WILLIAM L. EMERY, II,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed July 22, 2016.
Affirmed.

Submitted by the parties for summary disposition pursuant to K.S.A. 2015 Supp. 21-6820(g) and
(h).

Before GREEN, P.J., MCANANY and ATCHESON, JJ.

Per Curiam: Defendant William L. Emery, II, contends the Sedgwick County
District Court abused its discretion in revoking his probation and then ordering him to
serve his underlying prison sentence in this case. Because Emery had performed poorly
on probation in other cases and the probation violations in this case included a new
criminal offense, the district court did not abuse its discretion in sending him to prison.
We, therefore, affirm.

In this case, Emery was charged in October 2012 with felony theft for shoplifting
merchandise from a department store in Wichita. The crime constituted a felony based on
Emery's past convictions for theft. Under an agreement with the State, Emery pled as
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charged in August 2013. The State made a recommendation to the district court for the
aggravated guidelines sentence with a dispositional departure to probation. The
agreement called for the sentence to be consecutive to those imposed in No. 11 CR 3018
and No. 11 CR 3403. Emery had already been convicted in those cases and had been
placed on probation in them. The district court sentenced Emery in October 2013 in
conformity with the plea agreement. Emery received a 15-month sentence to be served
consecutive to the sentences in the earlier cases and was placed on probation for 12
months.

For reasons not immediately apparent from the appellate record, Emery was not
released from probation on schedule and remained on probation in all three cases.

On February 26, 2015, the intensive supervision officer assigned to Emery filed an
affidavit alleging Emery had violated the terms of his probation by testing positive for
amphetamines and by committing the misdemeanor "offense of Interference with a Law
Enforcement Officer and False Report." On April 30, 2015, the district court conducted a
joint probation revocation hearing in Nos. 11 CR 3018, 11 CR 3404, and 12 CR 2488,
although the cases had not been formally consolidated. Emery admitted both of the
alleged probation violations.

The State asked that Emery's probation be revoked and that he serve the
underlying prison sentences in this and the other cases. Emery asked the district court to
reinstate his probation and explained that his sister's death prompted his most recent
relapse. According to Emery, he was his sister's next-of-kin and had to make the decision
to discontinue her life support after she had been declared brain dead.

The district court ultimately revoked probation in each case and ordered Emery to
prison. The district court specifically found that Emery had committed a new crime—the
misdemeanor interference offense—so no intermediate sanction was required. See K.S.A.
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2015 Supp. 22-3716(c)(8). But the district court modified the sentences so Emery would
serve all of them concurrently, resulting in a controlling 53-month term of imprisonment.

Emery timely appealed the revocation of his probation in each of the district court
cases, resulting in three separate appeals. The appeals have not been consolidated in this
court. Nonetheless, this panel has decided all of them and has issued separate opinions in
the other two cases. See State v. Emery, No. 114,366 (unpublished opinion), this day
decided; State v. Emery, No. 114,367 (unpublished opinion), this day decided. The
opinions overlap considerably, given the common factual and procedural histories of the
cases and the appellate issue.

For his sole claim on appeal, Emery submits the district court abused its discretion
by refusing to reinstate his probation. Probation is an act of judicial leniency afforded a
defendant as a privilege rather than a right. See State v. Gary, 282 Kan. 232, 237, 144
P.3d 634 (2006). A district court's decision to revoke probation usually involves two
steps: (1) a factual determination that the probationer has violated a condition of
probation; and (2) a discretionary determination as to the appropriate disposition in light
of the proved violations. State v. Skolaut, 286 Kan. 219, Syl. ¶ 4, 182 P.3d 1231 (2008).

A defendant's stipulation to the alleged violations satisfies the first step. Here,
Emery so stipulated, obviating the State's duty to prove the violations by a preponderance
of the evidence. See State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006); State
v. Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.3d 844 (2007), rev. denied 286 Kan. 1183
(2008). After a violation has been established, the decision to reinstate probation or to
revoke and incarcerate the probationer rests within the sound discretion of the district
court. See Skolaut, 286 Kan. at 227-28. Judicial discretion has been abused if a decision
is arbitrary, fanciful, or unreasonable or rests on a substantive error of law or a material
mistake of fact. State v. Cameron, 300 Kan. 384, 391, 329 P.3d 1158, cert. denied 135 S.
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Ct. 728 (2014). Emery carries the burden of showing that the district court abused its
discretion. See State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).

Emery does not suggest the district court misunderstood the governing law or
mistook the relevant facts. Rather, he contends the decision to send him to prison was so
extreme that no reasonable judicial officer would come to that conclusion under the
circumstances. We disagree.

The evidence at the revocation hearing showed Emery had battled drug addiction
since he was a teenager—a 20-year fight during which the drugs seem to have won
considerably more rounds. Much of Emery's criminal conduct, including the theft in this
case, appears to have been drug seeking behavior—efforts to get things that could be sold
or traded for illegal drugs. The evidence also showed that Emery's probation had been
revoked and reinstated multiple times in Nos. 11 CR 3018 and 11 CR 3404 for violations
that included testing positive for illicit drugs. Although those violations predated Emery's
placement on probation in this case, the district court could take account of that poor
performance in gauging whether to reinstate here. Cf. State v. Rodriguez, 269 Kan. 633,
647, 8 P.3d 712 (2000) (district court may consider defendant's performance on probation
in earlier cases in deciding whether to impose a dispositional departure from presumptive
probation to incarceration). Those failures were close in time and essentially reflected
Emery's continuing inability to deal effectively with his addiction and the allied problems
it fomented.

Emery could not refrain from abusing drugs for extended periods and regularly
drifted back to criminal behavior, much of which was probably aimed at supporting his
addiction. Faced with Emery's inability to succeed in a comparatively structured
probation setting, the district court fairly concluded a far more restrictive prison
environment presented a better chance for Emery to beat his addiction while securing the
general public against his continued criminal conduct.
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Under these circumstances, we conclude the decision to revoke Emery's probation
in this case easily rested within the discretionary authority afforded the district court and
comported with what many other district courts would do in like cases. There was no
abuse of discretion.

Affirmed.