State v. Jones

NOT DESIGNATED FOR PUBLICATION

No. 112,661

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CHRISTOPHER JONES,
Appellant.


MEMORANDUM OPINION

Appeal from Saline District Court; PATRICK H. THOMPSON, judge. Opinion filed November 13,
2015. Affirmed.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Brock R. Abbey, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt,
attorney general, for appellee.

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

LEBEN, J.: Christopher Jones received probation following his conviction for
several drug-related crimes, including possession of methamphetamine. Jones violated
several of his probation conditions. He failed to report to his probation officer, submit to
drug testing, and refrain from using and possessing mood altering chemicals; he also was
convicted of a new felony offense. The judge revoked Jones' probation and ordered him
to serve his original underlying sentence of 33 months.

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Jones appeals. But it's within the 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 Jones' probation.

FACTUAL AND PROCEDURAL BACKGROUND

In 2011, a jury convicted Christopher Jones of possession of methamphetamine,
possession of methamphetamine without a drug tax stamp, possession of marijuana, and
possession of drug paraphernalia. Jones' presumptive guidelines sentence was a prison
term, but the district court granted Jones a downward-dispositional departure and
imposed 18 months of probation with an underlying prison sentence of 33 months to be
served if Jones didn't successfully complete his probation.

Twice, the district court extended Jones' probation beyond its original term, so
Jones' probation was set to end on February 27, 2015. On March 19, 2014, the State
moved to revoke Jones' probation, and the State amended its motion on April 2, 2014,
alleging additional violations. The violations included numerous instances of testing
positive for methamphetamine and failing to report to his probation officer, as well as
quitting his job and possessing methamphetamine.

In July 2014, Jones pled no contest to a new crime, possessing methamphetamine.
Jones admitted that this new conviction violated his probation. The district court noted
that it did not have to grant intermediate sanctions because Jones had committed a new
felony, revoked Jones' probation, and imposed the original underlying sentence. Jones
appealed to this court.

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ANALYSIS

On appeal, Jones argues that the district court erred in revoking his probation
based on conduct that occurred after his probation had ended. When Jones filed his brief
in April 2015, the record on appeal supported his argument—his probation appeared to
have ended on February 27, 2014, and the district court revoked his probation based in
part on a March 21, 2014 conviction. But in July 2015, the State asked to add a document
to the record on appeal (and Jones did not object). See Supreme Court Rule 3.02(d) (2014
Kan. Ct. R. Annot. 21) ("A party may request adding to the record on appeal any part of
the entire record under Rule 3.01[a]."). This additional document—a request to modify
probation, signed by Jones and approved by the district court in January 2014—shows
that Jones' probation had been extended through February 27, 2015. So Jones' March 21,
2014 conviction occurred while he was still on probation, and his argument about post-
probation conduct fails.

Even so, we must also consider whether the district court abused its discretion in
revoking Jones' probation. The legal rules applicable to that 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. As a general rule, once a violation has been
established, the decision to revoke probation has traditionally been within the discretion
of the district court. State v. Skolaut, 286 Kan. 219, 227-28, 182 P.3d 1231 (2008); 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 decision made by the district court. 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. 2014 Supp. 22-3716(b) and (c), requires, with certain
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exceptions, that the district court impose intermediate sanctions 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 (2015). One of these exceptions ties in to a longstanding
distinction that probation officers, lawyers, and judges have made between technical and
substantive probation violations: An act that violates probation conditions but isn't
otherwise unlawful is a technical violation, while an act that violates probation conditions
but is otherwise unlawful is a substantive violation. State v. Brown, 51 Kan. App. 2d ___,
357 P.3d 296, 300 (2015); see State v. Meeks, 789 So. 2d 982, 985 (Fla. 2001). In other
words, if a defendant commits a new felony while on probation—a substantive
violation—the district court has complete discretion to revoke probation without
imposing intermediate sanctions. K.S.A. 2014 Supp. 22-3716(c)(8).

Here, Jones does not argue that he was entitled to intermediate sanctions, nor
could he, because the district court revoked his probation based on a new felony
conviction. As such, the district court had to exercise its discretion when deciding
whether to revoke Jones' probation, and we find nothing unreasonable about its decision.
Jones admitted that his new conviction violated his probation, a probation that had begun
in November 2011 and already been extended twice. In that time, Jones had failed
numerous drug tests and then was convicted of a second drug charge. It was reasonable
for the district court to find that Jones was not amenable to probation and to revoke his
probation.

We therefore affirm the district court's judgment.