State v. Lomax

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NOT DESIGNATED FOR PUBLICATION

No. 119,080

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

VINCENT LOMAX,
Appellant.


MEMORANDUM OPINION

Appeal from Crawford District Court; KURTIS I. LOY, judge. Opinion filed May 10, 2019.
Affirmed.

Jason P. Wiske, of Law Office of Jason P. Wiske, L.L.C., of Pittsburg, for appellant.

Michael Gayoso Jr., county attorney, and Derek Schmidt, attorney general, for appellee.

Before GREEN, P.J., SCHROEDER, J., and STUTZMAN, S.J.

PER CURIAM: Vincent Lomax was on probation under the supervision of
Crawford County Court Services for three cases, a felony and two misdemeanors. Court
services filed affidavits in all three cases asking for revocation of Lomax's probation. The
district court found Lomax had violated the conditions of his probation, extended the
term of probation by 12 months, and ordered Lomax to serve 60 days in jail. The court
stayed service of the jail sanction. Lomax appeals, claiming the district court should have
terminated probation in the cases and sent any unpaid costs and restitution to the
collections process. We find no abuse of discretion by the district court and we affirm.

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FACTS AND PROCEDURAL BACKGROUND

Lomax appeared before the district court on February 15, 2018, for a hearing on
the State's motion to revoke his probation in three cases. One of the underlying cases
resulted in a conviction for forgery, a felony, and the others were misdemeanor cases, one
for criminal trespassing and criminal damage to property, and the other for giving a
worthless check. The State alleged Lomax had two new convictions, had failed to appear
for probation appointments, and owed restitution in the forgery and check cases and costs
in all three.

At some point prior to the probation violation hearing, Lomax filed a petition for
habeas corpus relief pursuant to K.S.A. 60-1501, alleging the court should release him
from probation. That action was mentioned during the probation hearing but had not yet
been filed or served on the State and it is not part of this appeal.

Beth Emmert, Lomax's probation officer, testified at the probation violation
hearing. According to Emmert, Lomax violated his probation because he was convicted
in two separate cases, one in municipal court for driving while revoked, and the other in
district court earlier on the day of the probation hearing. Emmert also testified Lomax
had consistently failed to report for probation meetings at the specified times, often
missing an appointment and showing up days later, expecting to be seen. Finally, Emmert
testified Lomax continued to owe $925 in restitution for the forgery case and
approximately $300 in restitution on the check case. On cross-examination, Emmert
acknowledged Lomax had housing problems while on probation and observed he was
evicted for unpaid rent. She said Lomax had chosen in the past to make vehicle payments
rather than rent payments and, since there was public transportation available, she had
encouraged him to focus on housing rather than a vehicle.

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In his testimony, Lomax admitted he had missed about six appointments with
Emmert. Lomax also told the district court:

"I also feel personally that the probation based on what I've seen and what I looked at
probation should have been terminated in 2017. It has been terminated according to what
I've read, according to everything that I've looked at, and I have confidence that's the
case. . . . I'm not aware of a statute that allows a probation to be continued for simply for
payment of restitution."

On cross-examination, Lomax admitted he was convicted of two new crimes while
on probation and he did not dispute that the court ordered him to pay restitution in two of
his cases, but he denied he still owed restitution. On redirect examination, Lomax
testified that rather than cash payments toward restitution he had issued documents,
"certified promissory notes," "derived from the Uniform Commercial Code," that
"enable[d] [him] to discharge, as a means of payment, these obligations."

Lomax's counsel argued the court should terminate probation and send any unpaid
amounts to collections. Based on Lomax's probation violations for committing new
crimes, failing to report, and failing to pay restitution the State asked for a 60-day jail
sanction but did not object to Lomax remaining on probation, with a 12-month extension
to the probation period.

The district court found Lomax violated his probation and "revoked" his probation
in each of the three cases. The court then "returned" Lomax to probation and extended his
term for 12 months. Additionally, the district court ordered a 60-day jail sanction but
stayed execution of that sanction pending a hearing on Lomax's K.S.A. 60-1501 petition.

Lomax timely appeals.


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ANALYSIS

The sole issue Lomax presents is the contention that the district court committed
error by continuing him on probation, with a jail sanction and extension, "even though
there was no evidence that [he] willingly failed to pay restitution and costs."

Within the statutory framework in K.S.A. 2018 Supp. 22-3716, the district court is
vested with significant discretion to determine the action to be taken on a probation
violation:

"To sustain an order revoking probation on the ground that a probationer has
committed a violation of the conditions of probation, commission of the violation must be
established by a preponderance of the evidence. Once there has been evidence of a
violation of the conditions on which probation was granted, the decision to revoke
probation rests in the sound discretion of the district court. Judicial discretion is abused
when no reasonable person would have taken the position taken by the trial court." State
v. Gumfory, 281 Kan. 1168, Syl. ¶ 1, 135 P.3d 1191 (2006).

At the outset we should point out that the record clearly supports the district
court's finding that the State proved by a preponderance of the evidence that Lomax had
violated the terms of his probation in the ways alleged. Emmert testified that Lomax was
convicted of driving while revoked and the State placed a certified copy of the journal
entry of conviction into evidence. Emmert further confirmed that Lomax had been
convicted of another crime in the same district court earlier on the same day as the
probation violation hearing. Although Lomax disputed that he had been convicted of two
new crimes while on probation, he explained his position was based on an argument that
his probation ought to have been terminated before those crimes were committed. The
record also supports findings that Lomax had not reported for probation meetings as he
was required to do and that he had failed to pay restitution owed in the felony forgery and
misdemeanor worthless check cases.
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The district court heard evidence of three categories of violations—new crimes,
failures to report, and failure to meet financial obligations. Even if we were to accept
Lomax's contention that the district court should not have continued him on probation
because " there was no evidence that [he] willingly failed to pay restitution and costs,"
the court had ample basis to find violations in the other two categories. We do observe,
however, that Lomax's assertion he had "discharged those obligations" for restitution by
giving "certified promissory notes" does little to contradict an argument that he had
willingly failed to pay.

Lomax's claim before us, therefore, is reduced to his argument that instead of
imposing a jail sanction and extending his probation, the district court should have
terminated his probation and sent any unpaid financial obligations to the collections
process. K.S.A. 2018 Supp. 22-3716 describes a district court's options for responding to
established violations of probation conditions. Misdemeanors and a limited number of
felonies specified in K.S.A. 2018 Supp. 21-6804(i) are controlled by K.S.A. 2018 Supp.
22-3716(b)(3)(B) and other felonies fall under the range of options set in K.S.A. 2018
Supp. 22-3716(c)(1). State v. Sandoval, 308 Kan. 960, 963, 425 P.3d 365 (2018).

In this case, the district court first ordered that, based on the violations, Lomax's
probation was "revoked," and then after hearing the parties' comments concerning
disposition, the judge stated, "I am going to return you to probation." Under the terms of
K.S.A. 2018 Supp. 22-3716, "revocation" is reserved for a district court's decision to end
supervision of a nonprison sanction and order remand of a defendant to custody for
service of the original jail or prison sentence. K.S.A. 2018 Supp. 22-3716(b)(3)(B)(iii)
and (c)(1)(E). In lieu of revocation, that statute authorizes a district court to continue or
modify a defendant's probation. K.S.A. 2018 Supp. 22-3716(b)(3)(B)(i) and (c)(1)(A).

Although the district court did not employ the statutory language, the court
obviously chose the "continue or modify" option from the statute. Considering Lomax's
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other arguments, we are confident he would not ask for the district court to be held to its
declaration that his probation was "revoked," requiring him to serve his underlying
sentences.

Lomax argued that the district court should have chosen to terminate his
probation. The district court instead elected to exercise its discretion by continuing
Lomax on probation, imposing a jail sanction, and modifying the conditions of probation
by extending the term, each action authorized by the statute. We cannot characterize the
district court's choice as one that "no reasonable person would have taken." Accordingly,
we find no abuse of discretion.

Affirmed.