State v. Hester

NOT DESIGNATED FOR PUBLICATION

No. 113,877

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

LORENZO HESTER,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed April 8, 2016.
Affirmed.

Sam S. Kepfield, of Hutchinson, for appellant.

Daniel D. Gilligan, assistant district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, P.J., GREEN and LEBEN, JJ.

Per Curiam: Lorenzo Hester received probation following his conviction for
possession of cocaine and marijuana. After having had his probation revoked and
reinstated twice for violating the conditions of probation, Hester again violated his
probation when he absconded from supervision and committed two new crimes. This
time, the judge revoked Hester's probation and ordered him to serve his original
underlying prison sentence of 40 months.

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Hester has appealed to our court; he argues that the district court should have
given him another chance in light of his substance-abuse and mental-health problems.
But it's within the district court's discretion whether to revoke probation once a violation
has been established. On the facts of this case, we find no abuse of discretion in revoking
Hester's probation.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2013, Hester pled no contest to possession of cocaine and marijuana.
In March 2013, based on sentencing guidelines and Hester's criminal-history score, the
district court sentenced Hester to 40 months in prison but granted a dispositional
departure, placing Hester on probation for 18 months with required substance-abuse
treatment.

In April 2013, the State filed a motion to revoke Hester's probation, alleging he
had violated his probation when he was unsuccessful in his drug-treatment program and
tested positive for cocaine and marijuana. After an evidentiary hearing, the district court
revoked Hester's probation, sentenced him to 60 days in jail as a sanction, and then
reinstated his probation for another 18 months. Hester appealed the revocation to this
court, which affirmed the district court's decision in August 2014. See State v. Hester,
No. 110,453, 2014 WL 4231254 (Kan. App. 2014) (unpublished opinion).

Hester again violated his probation in October 2013 when he was unsuccessful in
drug treatment, absconded from supervision, and used marijuana. In March 2014, the
district court revoked and reinstated Hester's probation for another 18 months.

Hester absconded from supervision again in January 2015, and this time he was
also charged with two new crimes (obstruction and burglary) in Oklahoma. At his
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probation-revocation hearing in February 2015, Hester admitted to the violations. The
district court revoked his probation and imposed the underlying 40-month sentence.

ANALYSIS

On appeal, Hester argues that the district court abused its discretion when it
revoked his probation and that the district court should have considered mitigating factors
in its revocation decision.

The legal rules applicable to this question are straightforward. A district court's
decision to revoke probation must be based on a factual finding that a condition of
probation has been violated. State v. Skolaut, 286 Kan. 219, 227-28, 182 P.3d 1231
(2008). Once a violation has been established, the decision to revoke probation has
traditionally been within the discretion of the district court. 286 Kan. at 227-28; see State
v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). Unless the district court has made a legal
or factual error, this court may find an abuse of discretion only when no reasonable
person would agree with the district court's decision. State v. Ward, 292 Kan. 541, 550,
256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012); State v. Gumfory, 281 Kan.
1168, Syl. ¶ 1, 135 P.3d 1191 (2006).

The district court's discretion was limited by a 2013 statutory change. The new
statute, found now at K.S.A. 2015 Supp. 22-3716(b) and (c), requires, with certain
exceptions, that the district court impose some short-term punishment before ordering the
defendant to serve the underlying sentence. See State v. Huckey, 51 Kan. App. 2d 451,
Syl. ¶¶ 3-4, 348 P.3d 997, rev. denied 302 Kan. ___ (August 12, 2015). In our case, of
course, this wasn't Hester's first probation violation. But even if it were, when a defendant
commits a new felony or absconds from supervision while on probation, the district court
has complete discretion to revoke probation without imposing those intermediate
sanctions. K.S.A. 2015 Supp. 22-3716(c)(8); see State v. Brown, 51 Kan. App. 2d 876,
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880, 357 P.3d 296 (2015), rev. denied 303 Kan. ___ (March 28, 2016); State v. Croslin,
No. 113,695, 2016 WL 758661, at *3 (Kan. App. 2016) (unpublished opinion), petition
for rev. filed March 23, 2016.

Here, Hester does not argue that he was entitled to intermediate sanctions, so he
has waived that argument. State v. Walker, 283 Kan. 587, 594, 153 P.3d 1257 (2007)
(noting that an issue not briefed is deemed waived). Nor could he make such an
argument—he admitted that he had absconded, and the district court revoked his
probation based both on new criminal charges and on absconding. See K.S.A. 2015 Supp.
22-3716(c)(8). The district court therefore had complete discretion to revoke Hester's
probation based on Hester's admissions that he violated his probation, and we find
nothing unreasonable about that decision.

Hester argues that the district court should have considered the same mitigating
factors that courts use to consider imposing a lower sentence than the standard for a
particular crime. But Hester cites to no legal authority that would require the district
court to explicitly consider these mitigating factors. And in his case, the district court did
hear some evidence of mitigating factors—Hester testified that he had absconded because
he had been threatened due to his role as a witness in an upcoming trial, that he needed
substance-abuse treatment, that he had passed all his recent drug tests, and that he wasn't
well educated. It was within the district court's discretion to find that these factors weren't
persuasive when Hester had a criminal-history score of A—the most serious—and had
already violated his probation twice.

In sum, Hester was first placed on probation in March 2013. He was placed back
on probation twice after violating his probation conditions. Hester then absconded from
supervision and was charged with two new crimes in another state. On this third
occasion, he admitted that he had violated his probation both by absconding and by being
charged with new crimes, and the district court revoked his probation and imposed the
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underlying sentence. Under these circumstances, the district court did not abuse its
discretion in doing so.

We therefore affirm the district court's judgment.