State v. Kirkendoll

1

NOT DESIGNATED FOR PUBLICATION

No. 119,516

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CRAIG L. KIRKENDOLL,
Appellant.

MEMORANDUM OPINION


Appeal from Sedgwick District Court; DAVID J. KAUFMAN, judge. Opinion filed May 3, 2019.
Affirmed.

Submitted for summary disposition by the parties pursuant to K.S.A. 2018 Supp. 21-6820(g) and
(h).

Before ARNOLD-BURGER, C.J., PIERRON AND MALONE, JJ.

PER CURIAM: Craig L. Kirkendoll appeals the district court's decision to revoke
his probation and impose the underlying sentence. We granted Kirkendoll's motion for
summary disposition under Supreme Court Rule 7.041A (2019 Kan. S. Ct. R. 47). The
State responded to Kirkendoll's motion for summary disposition, requesting we affirm the
district court's decision. After considering the matter, we conclude the district court did
not abuse its discretion in revoking Kirkendoll's probation and sending him to prison
because he committed a new crime.

2

In June 2015, Kirkendoll pled guilty to one count of possession of
methamphetamine. The district court sentenced him to 28 months in prison but granted
him probation for 18 months.

In October 2015, Kirkendoll served a two-day jail sanction after testing positive
for methamphetamine and amphetamine.

In January 2016, Kirkendoll admitted to violating his probation by failing to
remain drug free. The district court placed Kirkendoll in the drug court program. The
court also ordered him to serve a three-day jail sanction and extended his probation by 18
months.

In March 2016, Kirkendoll again admitted to several probation violations,
including continued drug use and failure to submit a UA. The district court imposed a
four-day jail sanction.

In July 2017, Kirkendoll consented to the district court extending his probation
until August 4, 2018, because he had not paid all his drug court fees and he had not
completed the drug court requirements for graduation.

In August 2017, Kirkendoll was convicted of aggravated assault. The district court
sentenced him to 25 months in prison on that charge.

In May 2018, the district court found Kirkendoll in violation of his probation
because of his new conviction. Kirkendoll asked the court to modify his original sentence
because he had been doing well on probation up until he committed the new offense. The
court denied his request and imposed the original sentence of 28 months in prison.
Kirkendoll appeals, arguing the district court abused its discretion in imposing his
original underlying sentence.
3


Unless otherwise required by law, probation is granted as a privilege and not as a
matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once the State
has established that a probation violation has occurred, the decision whether to revoke
probation rests in the sound discretion of the district court. State v. Brown, 51 Kan. App.
2d 876, 879, 357 P.3d 296 (2015). A court abuses its discretion if its action is arbitrary,
fanciful, or unreasonable, or if it is based on an error of law or fact. State v. Marshall,
303 Kan. 438, 445, 362 P.3d 587 (2015). Kirkendoll does not contend the district court's
action was based on an error of law or fact. He has the burden of proving the revocation
constituted an abuse of discretion. See State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562
(2012).

Upon revoking a defendant's probation, the district court may impose the
underlying sentence, or any lesser sentence. K.S.A. 2018 Supp. 22-3716(c)(1)(E).
Kirkendoll argues the district court erred by not reducing his prison sentence to less than
28 months. But as Kirkendoll acknowledges, the district court's decision to order a lesser
sentence is discretionary. We find nothing unreasonable about the district court's decision
not to modify his sentence. Kirkendoll had committed multiple probation violations
before eventually committing a new violent crime. A reasonable person could agree with
the district court's decision to impose the original sentence, rather than a shorter one.

Affirmed.