State v. Henry

NOT DESIGNATED FOR PUBLICATION

No. 118,811

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

STEPHEN LAVON HENRY,
Appellant.


MEMORANDUM OPINION

Appeal from Geary District Court; MARITZA SEGARRA, judge. Opinion filed July 13, 2018.
Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2017 Supp. 21-6820(g) and (h).

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

PER CURIAM: Stephen Henry appeals the district court's decision to revoke his
probation and require him to serve his underlying prison sentence. Henry suggests that
the district court should have given him another chance at probation rather than send him
to prison.

But the district court found that Henry absconded from probation, and that gave
the district court the option of sending Henry to serve his prison sentence instead of
giving him another chance on probation. Given the factual circumstances presented to the
district court, we find no abuse of discretion in its decision to revoke Henry's probation
and require that he serve his prison sentence.

2

Henry was serving felony probation in 2014 when he was arrested and charged with
new crimes. The State dropped all but one charge in exchange for Henry pleading no contest
to one count of criminal threat. The district court then sentenced Henry to 12 months of
probation and a 12-month underlying sentence that Henry would have to serve if he didn't
successfully complete probation.

In May 2015, Henry was arrested after the State claimed Henry violated his probation
by failing to report to his probation officer. The court held a probation-revocation hearing,
where it ordered Henry to serve 12 days in jail, followed by 12 more months of probation.
Several months after that, in March 2016, Henry was again arrested for failing to report. The
district court ordered Henry to serve a longer jail sanction for his violation, followed by 12
more months of probation. Then in October 2017, Henry was arrested a third time after
absconding. The district court found that Henry had absconded from his probation, revoked
Henry's probation, and ordered him to serve his underlying sentence.

Once a probation violation has been established, the decision to revoke probation
has traditionally been considered within the discretion of the district court. See State v.
Skolaut, 286 Kan. 219, 227-28, 182 P.3d 1231 (2008). K.S.A. 2017 Supp. 22-3716 now
limits that discretion, but its provisions requiring an offender serve a series of
intermediate sanctions before ordering the defendant to serve the underlying prison
sentence do not apply if, among other things, the defendant has absconded from
probation. See K.S.A. 2017 Supp. 22-3716(c); State v. Huckey, 51 Kan. App. 2d 451, Syl.
¶ 4, 348 P.3d 997 (2015). So if the district court properly found that Henry
had absconded, it wouldn't have been required to impose other intermediate sanctions
before revoking Henry's probation. We would then review its decision only for abuse of
discretion. Unless the court has made a legal or factual error, we may find an abuse of
discretion only when no reasonable person would agree with the decision made by the
trial court. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011).

3

We turn then to whether the court properly found that Henry had absconded,
which means "to depart secretly or suddenly, especially to avoid arrest, prosecution, or
service of process." Huckey, 51 Kan. App. 2d 451, Syl. ¶ 5. Henry's probation officer
testified that she had told him to report to her within 24 hours of his release from serving
his last jail sanction. Instead of doing that, Henry left town and made no contact with her.
The probation officer tried two phone numbers Henry had given her, but one wasn't in
service and the other wasn't accepting calls. Based on this, the prosecutor alleged Henry
had absconded as a basis for revoking his probation and sending him to serve his prison
sentence. Henry's attorney agreed, saying that the court could "give Mr. Henry [another
intermediate sanction], or send him to prison." So we conclude that the district court's
finding that Henry had absconded was supported by the evidence and not contested by
Henry.

Since Henry had absconded, we review the district court's decision to revoke his
probation only for abuse of discretion, and we find nothing unreasonable about the
district court's decision here. Henry had many opportunities to successfully complete his
probation. But after failing to do so, a reasonable person could conclude that Henry
wasn't amenable to probation and that revoking his probation was appropriate.

On Henry's motion, we accepted this appeal for summary disposition under K.S.A.
2017 Supp. 21-6820(g) and (h) and Supreme Court Rule 7.041A (2018 Kan. S. Ct. R.
47). We have reviewed the record available to the sentencing court, and we find no error
in its decision to revoke Henry's probation.

We affirm the district court's judgment.