State v. Garcia

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NOT DESIGNATED FOR PUBLICATION

Nos. 116,302
116,303

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RICARDO GARCIA,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed April 14, 2017.
Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2016 Supp. 21-6820(g) and (h).

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

Per Curiam: Ricardo Garcia appeals the district court's decision revoking his
post-imprisonment supervision and ordering him to serve a modified sentence in two
separate cases. We granted Garcia's motion for summary disposition in lieu of briefs
pursuant to Supreme Court Rule 7.041A (2017 Kan. S. Ct. R. 48). The State has filed a
response and agrees that summary disposition is appropriate.

In both 13CR667 and 13CR668, Garcia was convicted of refusing to submit to a
blood alcohol test in violation of K.S.A. 2016 Supp. 8-1025. The district court imposed
consecutive sentences in each case of 12 months in jail but granted post-imprisonment
supervision after the defendant served a term of 92 days.
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On June 13, 2016, after Garcia stipulated to a third violation of his supervision, the
district court revoked Garcia's post-imprisonment supervision and ordered him to serve a
modified sentence. The district court reduced the sentence in 13CR668 from 12 months
to 6 months, for a controlling sentence in both cases of 18 months. The district court
authorized work release in both cases. The district court also found, pursuant to K.S.A.
2016 Supp. 22-3716(c)(9), that an additional intermediate sanction was not required
because the safety of the members of the public would be jeopardized or the welfare of
the offender would not be served by imposing such a sanction. Garcia timely appealed.

On appeal, Garcia claims that the district court "abused its discretion by refusing
to reinstate [his] probation because sanctions and extensions of probation remained viable
options." The State asserts that the district court was within its discretion to revoke
Garcia's probation and to order him to serve a modified sentence.

Generally, once the State has proven a violation of the conditions of probation, the
decision to revoke probation is within the district court's sound discretion. State v.
Gumfory, 281 Kan. 1168, 1175, 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 an
abuse of discretion. State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).

Garcia was charged, convicted, and sentenced in each of his cases under the self-
contained statute prohibiting a driver from refusing to submit to a blood alcohol test. See
K.S.A. 2016 Supp. 8-1025. This statute provides for a mandatory 1-year period of post-
imprisonment supervision and provides that violations of the condition of that
supervision may subject a person to (1) revocation of supervision and imprisonment in
jail for the remainder of the period of imprisonment, (2) revocation of supervision and
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imprisonment in jail for the remainder of the supervision period, or (3) any combination
or portion thereof. See K.S.A. 2016 Supp. 8-1025(b)(3).

Although not noted by either party, the district court is not required to consider
intermediate sanctions under K.S.A. 2016 Supp. 22-3716 before revoking an offender's
post-imprisonment supervision for refusal to submit to a blood alcohol test. The
requirement for a district court to consider intermediate sanctions before revoking a
defendant's probation does not apply if the defendant is convicted of a felony specified in
K.S.A. 2016 Supp. 21-6804(i), which includes a conviction of refusal to take a blood
alcohol test in violation of K.S.A. 2016 Supp. 8-1025. See K.S.A. 2016 Supp. 22-
3716(c)(1); 22-3716(b)(3)(B)(iii); 21-6804(i)(1). Thus, we should not need to address
whether the district court made particularized findings under K.S.A. 2016 Supp. 22-
3716(c)(9) to bypass intermediate sanctions.

Assuming for the sake of argument that the district court was required to make
particularized findings before revoking Garcia's probation, and because the district court
apparently believed that such findings were necessary, we will analyze the claim on its
merits. Pursuant to K.S.A. 2016 Supp. 22-3716(c)(9), the court may revoke an offender's
probation without having previously imposed an intermediate sanction if the court finds
and sets forth with particularity the reasons for finding that the safety of the members of
the public will be jeopardized or that the welfare of the offender will not be served by
such a sanction. Whether the district court's reasons are sufficiently particularized as
required by statute is a question of law over which an appellate court has unlimited
review. State v. McFeeters, 52 Kan. App. 2d 45, 48, 362 P.3d 603 (2015).

Here, at the probation revocation hearing, the district court summarized the
procedural history of Garcia's case, including his multiple failures on probation. The
district court then stated as follows:

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"I'm going to go ahead and, pursuant to KSA 22-3716(c)(9), I'm going to make
public safety findings and offender welfare findings that a two day, three-day sanction
would not be appropriate. Number one, we have, in effect, tried the graduated sanctions
and have tried ones that are actually more significant than what the statute applied, so the
spirit of the graduated sanctions has been—the whole idea is that you don't just, boom,
revoke somebody, you give them alternate samples of what's going to happen, in hopes it
will jolt 'em to their seriousness of the situation and that's been complied with.
"Number two, you've got a history of committing crimes when you get to
drinking or using drugs and so that raises concerns about public safety and it raises
concern about your safety. And specifically, we have this prior DUI, you know, people
get maimed and killed as a result of DUI, you know, it's not unusual.
"Three, you know, the Court has exhausted any resources on probation. You
know, we even—the residential program, that's the maximum program I have for
probation and we tried that. So at this point I'm going to go ahead and, based on those
public safety and offender findings—the other thing I do need to say is the factors, your
health and your safety, because of you using especially methamphetamine, a lethal, lethal
drug, I'm concerned about your health and your life."

After making the above findings, the district court modified the sentence in
13CR668 from 12 months to 6 months, for a controlling sentence in both cases of 18
months. The district court made sufficient findings to revoke Garcia's post-imprisonment
supervision without considering additional intermediate sanctions. Garcia had violated
the conditions of his supervision on three separate occasions. The district court's decision
to revoke Garcia's supervision was not arbitrary, fanciful, or unreasonable, and it was not
based on an error of fact or law. We conclude the district court did not err in revoking
Garcia's post-imprisonment supervision and ordering him to serve a modified sentence.

Affirmed.