State v. Martinez

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NOT DESIGNATED FOR PUBLICATION

No. 119,737

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

PABLO E. MARTINEZ,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed February 22,
2019. Affirmed.

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

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

PER CURIAM: Pablo E. Martinez appeals the district court's decision to revoke his
probation and impose his underlying prison sentence. We granted Martinez' motion for
summary disposition pursuant to Supreme Court Rule 7.041A (2019 Kan. S. Ct. R. 47).
The State responded by not objecting to summary disposition but requesting that we
affirm the revocation of Martinez' probation. After review, we find no abuse of discretion
on the part of the district court and affirm.

As part of a plea agreement with the State, Martinez pled guilty to burglary of a
dwelling, fleeing or attempting to elude a law enforcement officer, and possession of
methamphetamine, all felonies. In exchange for his plea, the State agreed to recommend
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the low number in the appropriate sentencing guidelines grid box for each count,
concurrent sentences, and probation. At his sentencing on December 21, 2017, the district
court followed the plea agreement and sentenced Martinez to a total prison term of 12
months in prison but placed Martinez on probation from his sentences for a period of 24
months.

On February 5, 2018, Martinez stipulated to violating the terms of his probation,
waived his right to a hearing, and consented to a two-day jail sanction. On March 12,
2018, Martinez again stipulated to violating the terms of his probation, waived his right to
a hearing, and consented to a three-day jail sanction. However, he never served that
sanction.

On April 2, 2018, the State sought to revoke Martinez' probation, alleging among
other things that Martinez had tested positive for drugs, had failed to serve his three-day
jail sanction, and had failed to report. Two days later, the State filed an amended warrant
adding allegations that Martinez had committed new crimes while on probation, among
those being reckless driving, fleeing or attempting to elude a law enforcement officer,
and possession of drug paraphernalia. At his probation violation hearing on May 31,
2018, Martinez admitted or elected to not contest the allegations in the amended warrant.
The district court, citing Martinez' commission of new crimes while on probation,
revoked his probation and ordered that he serve his underlying sentences.

On appeal, Martinez argues the district court abused its discretion in revoking his
probation and imposing his underlying prison sentence. Once a violation has been
established, the decision to revoke probation is within the sound discretion of the district
court. See State v. Skolaut, 286 Kan. 219, 227-28, 182 P.3d 1231 (2008). Judicial
discretion is abused if the action (1) is arbitrary, fanciful, or unreasonable, i.e., if no
reasonable person would have taken the view adopted by the trial court; (2) is based on
an error of law; or (3) is based on an error of fact. See State v. Jones, 306 Kan. 948, 957,
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398 P.3d 856 (2017). This discretion is limited by the intermediate sanctions as outlined
in K.S.A. 2018 Supp. 22-3716. Martinez bears the burden to show an abuse of discretion
by the district court. See State v. Rojas-Marceleno, 295 Kan. 525, 531, 285 P.3d 361
(2012).

K.S.A. 2018 Supp. 22-3716 requires the district court to impose intermediate
sanctions before revoking an offender's probation. See State v. Huckey, 51 Kan. App. 2d
451, 454, 348 P.3d 997, rev. denied 302 Kan. 1015 (2015). However, there are exceptions
that permit a district court to revoke probation without having previously imposed the
statutorily required intermediate sanctions, one of which is if the offender commits a new
crime while on probation. See K.S.A. 2018 Supp. 22-3716(c)(8)(A).

Here, it is undisputed by the parties that Martinez violated the terms of his
probation by committing new crimes while on probation. Thus, the district court was
entitled to revoke his probation and impose his underlying prison sentences. While
Martinez argues that incarceration does not adequately address his drug addiction, given
his commission of new crimes and continued drug usage while on probation, Martinez
fails to persuade us that no reasonable person would have taken the view of the district
court. Accordingly, we conclude the district court did not abuse its discretion.

Affirmed.