State v. Leiker

1

NOT DESIGNATED FOR PUBLICATION

No. 112,816

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DAMON LEIKER,
Appellant.


MEMORANDUM OPINION

Appeal from Ellis District Court; GLENN R. BRAUN, judge. Opinion filed December 23, 2015.
Affirmed.

Samuel Schirer, of Kansas Appellate Defender Office, for appellant.

Natalie Chalmers, assistant solicitor general, of Office of Kansas Attorney General, for appellee.

Before MCANANY, P.J., POWELL, J., and DAVID J. KING, District Judge, assigned.

Per Curiam: Damon Leiker appeals the district court's decision revoking his
probation and ordering him to serve his prison sentence. Because we conclude the district
court did not abuse its discretion in making that decision, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 27, 2014, Leiker pled no contest to one count of felony possession of
marijuana. As part of the plea agreement, the State agreed not to object to the district
court imposing the standard sentence and both sides would recommend probation. At the
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April 14, 2014, sentencing hearing, the district court granted Leiker's dispositional
departure motion and sentenced him to 18 months of probation with an underlying 34-
month prison sentence. Afterwards, the district judge stated:

"[M]y policy is pretty simple. You've been granted something today the law says you are
not entitled to, the privilege of probation.
"Privileges can be granted but they can also be lost. You will lose this privilege if
I find out you have any violations, Mr. Leiker. . . . You have no margin of error. Many
times people that have presumptive probation can have one positive UA, or they can [not]
make a curfew, or miss an appointment, and the court will grant them some latitude
because they . . . were presumptive probation to begin with. There's a penalty associated
with it, but the penalty isn't necessarily to go off to the penitentiary.
"You don't have that luxury. . . . I don't want there to be any misunderstanding.
When I represented criminal defendants many times . . . I would hear . . . over and over
again, 'Nobody told me', or 'If I would have known this was going to happen'—so that
there can be no question about that Mr. Leiker, I've now [told] you. So there's no doubt in
your mind.
"If I see you again on a probation violation, you will go to the penitentiary and
serve that prison sentence."

The district judge asked if that was clear, and Leiker answered, "Yes."

Unfortunately for Leiker, on August 5, 2014, Leiker's intensive supervision officer
filed an affidavit alleging Leiker violated several probation conditions, including testing
positive for methamphetamine, failing to report for drug treatment, failing to be home for
random surveillance checks after curfew, and failing to answer the door for a surveillance
check because a person Leiker knew to be an absconded felon was at his house. The State
then filed a motion to revoke Leiker's probation. The probation revocation hearing was
held September 10, 2014.

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After the evidence had been presented, the district judge stated he did not need
arguments from the parties because he remembered the case well since he had only
recently sentenced Leiker. The judge reiterated that Leiker's sentence should have been
presumptive prison, but the court had granted the departure motion that allowed Leiker to
serve the sentence on probation instead. The judge reminded Leiker that Leiker had said
he was going to give probation his best effort and that if the judge saw him again,
Leiker's probation would be revoked. Finally, the district judge stated:

"The court's going to find that the welfare of the offender wouldn't be served by
the sanction. The court's going to find further, society wouldn't be served by the sanction.
The court's going to find, based upon the testimony here today, the Affidavit that's been
admitted, and the findings I've made on the record, that probation should be revoked and
you will be remanded to the custody of the Ellis County Sheriff to serve your sentence
with the Department of Corrections."

The probation revocation journal entry listed as reasons for revocation that Leiker
had new felony charges in Ellis County case 14CR396, that Leiker was not amenable for
treatment as testified to by the director of community corrections, and that Leiker had
committed multiple probation violations.

Leiker timely appeals.

DID THE DISTRICT COURT ABUSE ITS DISCRETION BY REVOKING LEIKER'S PROBATION?

On appeal, Leiker argues that the district court abused its discretion by
automatically revoking his probation instead of using its discretion to determine whether
revocation was necessary.

Probation from a sentence is "'an act of grace by the sentencing judge and, unless
otherwise required by law, is granted as a privilege and not as a matter of right.'
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[Citations omitted.]" State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once the
State has proven a violation of the conditions of probation, "revocation is in the sound
discretion of the district court." State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). A
judicial action constitutes an abuse of discretion if the action is (1) arbitrary, fanciful, or
unreasonable; (2) based on an error of law; or (3) based on an error of fact. State v. Ward,
292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). The party
alleging an abuse of discretion has the burden of demonstrating it. State v. Burnett, 300
Kan. 419, 449, 329 P.3d 1169 (2014).

Leiker argues that the district court indicated it had a policy of always imposing
the underlying sentence when a defendant violated probation after that defendant
obtained his or her probation sentence through a dispositional departure. He argues that
the district court's automatic imposition of his prison sentence constitutes an abuse of
discretion because "it is an abuse of discretion to refuse to exercise discretion or fail to
appreciate the existence of the discretion to be exercised." State v. Horton, 292 Kan. 437,
440, 254 P.3d 1264 (2011).

Leiker specifically relies upon the pre-Kansas Sentencing Guidelines Act case
State v. Fisher, 249 Kan. 649, 822 P.2d 602 (1991), in which our Supreme Court reversed
the district court's imposition of a prison sentence on a cocaine conviction because, when
imposing the sentence, the district judge stated: "'This Court does not grant [probation]
on convictions of cocaine, first offense or any other.'" 249 Kan. at 652. Fisher argued that
the district court's decision did not consider her individual situation and was counter to
K.S.A. 21-4601, which applied to all dispositions and required that "persons convicted of
a crime shall be dealt with in accordance with their individual characteristics,
circumstances, needs, and potentialities." The Supreme Court found that even though the
district court expressed other reasons for imposing the prison sentence, its closing remark
demonstrated that it sentenced the defendant to prison solely because she was convicted
of possession of cocaine, which constituted an abuse of discretion. 249 Kan. at 652.
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We find Fisher to be distinguishable from the current case. The factors from
K.S.A. 21-4601 that the district court was supposed to consider in Fisher do not apply in
this case. Leiker cites K.S.A. 2014 Supp. 22-3716(c)(1)(A), which gives the district court
broad discretion in deciding what type of sanction to impose upon revoking probation.
Because the district court has broad discretion, it is not clear that the district court would
have erred even if it relied solely on the fact that Leiker's probation had been imposed as
part of a departure sentence.

Nevertheless, Leiker's position that the district court automatically imposed the
prison sentence is not supported by the record. Leiker had already served a 3-day
sanction in May 2014 for violating the terms of his probation. Although the district judge
reminded Leiker that he had said he would order Leiker to serve the prison sentence if the
judge saw him again, the judge actually considered Leiker's history on probation and the
information in the affidavits submitted. The district court determined—based on Leiker's
actions while on probation—that neither Leiker's welfare nor society would be served by
any sanction besides imposition of the prison sentence.

Additionally, the State argues that Leiker was not entitled to any graduated
sanction under K.S.A. 2014 Supp. 22-3716(b) because the felony convictions specified in
K.S.A. 2014 Supp. 21-6804(i) are excluded from the graduated sanctions provision.
Leiker argues that his drug offense is not one of those specified felony convictions. We
need not address whether Leiker's conviction fell under the exemptions to the graduated
sanctions provision because the district court found that Leiker committed a new offense
while on probation, in which case the graduated sanctions also do not apply. See K.S.A.
2014 Supp. 22-3716(c)(8).

Affirmed.