State v. Morris

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NOT DESIGNATED FOR PUBLICATION

Nos. 120,216
120,217


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

WILLIAM R. MORRIS JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed
November 8, 2019. Affirmed.

James M. Latta, of Kansas Appellate Defender Office, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before GREEN, P.J., BRUNS, J., and WALKER, S.J.

PER CURIAM: William R. Morris Jr. appeals, arguing that the trial court abused its
discretion by revoking his probation and imposing his original underlying sentence in his
consolidated cases. Morris argues that the trial court erred because it revoked his
probation under K.S.A. 2017 Supp. 22-3716(c)(9)(B)—a provision the Legislature had
not enacted when he committed his probation violations. Morris also argues that the trial
court's decision to impose his original sentence was unreasonable because he could
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receive better treatment for his drug addiction while on probation. Because neither of
Morris' arguments are persuasive, we affirm.

On October 29, 2015, Morris pled guilty to one count of possession of
methamphetamine, two counts of theft, and two counts of burglary in No. 14 CR 1991.
He also pled guilty to a single count of possession of methamphetamine in No. 14 CR
2332.

The trial court consolidated Morris' cases for sentencing. Based on Morris'
criminal history score of A, Morris had a presumed prison status. Nevertheless, the trial
court granted Morris' request for a dispositional departure to probation. The trial court
sentenced Morris to a controlling term of 12 months' probation, with an underlying
sentence of 66 months' imprisonment plus 24 months' jail time followed by 12 months'
postrelease supervision.

Over the next couple of years, Morris stipulated to violating the terms of his
probation three times. First, Morris admitted to committing two new crimes—domestic
battery and "assaultive behavior" in May 2016. At the July 2016 probation violation
hearing, the trial court revoked and reinstated Morris' probation, ordering that Morris
serve a 3-day jail sanction and extending Morris' overall probation term of 18 months.
Second, Morris agreed that he had not complied with several conditions of his probation,
including therapy attendance, in October 2016. At the December 2016 probation
violation hearing, the trial court revoked and reinstated Morris' probation. This time, in
addition to extending Morris' overall probation term 18 months, the trial court ordered
that Morris serve a 180-day prison sanction. Third, Morris admitted that he tested
positive for methamphetamine in March 2017, tested positive for methamphetamine in
April 2017, and failed to report to his probation supervisor following his positive drug
tests. At the September 2018 probation violation hearing, the trial court revoked Morris'
probation, ordering Morris to serve his original underlying prison and jail sentence.
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The trial court revoked Morris' probation over Morris' request for either a 60-day
or a 120-day jail sanction and a new "drug and alcohol evaluation." Morris asserted he
needed another chance on probation because he was a drug addict who would benefit
from drug treatment. The trial court rejected Morris' argument for the following reason:

"Well, as noted, this was a dispositional departure on each of these cases. The
defendant is a criminal history A. PSI reflects 16 priors dating back to 1985, so over 30
years of convictions. Looks like drug crimes back to '96, so we've got a more than 20-
year drug history.
"Judge Wilbert did give Mr. Morris two opportunities already with the two PVs
that he had where he was not revoked. So at this point I don't believe that reinstatement is
going to be a viable alternative, based upon Mr. Morris' performance to date on
probation, so I am going to revoke probation in each of these cases."

Morris timely appeals the revocation of his probation.

Did the Trial Court Err by Revoking Morris' Probation?

Appellate courts review whether a trial court correctly revoked a defendant's
probation for an abuse of discretion. State v. Hurley, 303 Kan. 575, 580, 363 P.3d 1095
(2016). A trial court abuses its discretion if it makes an error of law, an error of fact, or an
otherwise unreasonable decision. State v. McFeeters, 52 Kan. App. 2d 45, 47, 362 P.3d
603 (2015).

On appeal, Morris argues that the trial court abused its discretion when revoking
his probation in two ways. First, he argues that the trial court made a legal error when it
revoked his probation under K.S.A. 2017 Supp. 22-3716(c)(9)(B)'s exception that the
court may revoke a defendant's probation without first imposing intermediate sanctions if
the defendant's "probation . . . was originally granted as the result of a dispositional
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departure granted by the sentencing court pursuant to K.S.A. 21-6815, and amendments
thereto." Morris argues that the trial court could not use K.S.A. 2017 Supp. 22-
3716(c)(9)(B)'s exception to revoke his probation because he committed his probation
violations before the Legislature enacted this exception in July 2017. See L. 2017, ch. 92,
§ 8. Second, he argues that the trial court acted unreasonably when it refused to revoke
and then reinstate his probation so he could attend drug treatment. Nevertheless, neither
of Morris' arguments are persuasive.

Morris' argument about the trial court using K.S.A. 2017 Supp. 22-3716(c)(9)(B)'s
exception to revoke his probation ignores the trial court's stated reasons for revoking his
probation. Although the trial court noted that Morris received dispositional departures in
his cases, the trial court explicitly stated that it "[did not] believe that reinstatement [was]
. . . a viable alternative" because "Judge Wilbert [had given] Mr. Morris two
opportunities already with the two PVs . . . where he was not revoked." Thus, it is readily
apparent that the trial court revoked Morris' probation because Morris had previously
received the 3-day jail and 180-day prison intermediate sanctions. Moreover, both of the
trial court's probation violation journal entries noted Morris' previous intermediate
sanctions. Neither address the situation where Morris initially received probation because
of a dispositional departure.

Moreover, in his brief, Morris explains that the trial court revoked his probation
for two reasons: "The [trial] court appeared to revoke his probation based, in part, on the
exception granting immediate revocation for those on probation as a result of a
dispositional departure." (Emphasis added.) By using the term "in part," Morris concedes
that the trial court did not revoke his probation based on K.S.A. 2017 Supp. 22-
3716(c)(9)(B)'s exception alone. Additionally, Morris later concedes that the trial court
"had legal authority to revoke [his] probation, due to his past sanctions." Morris'
concessions taken together establish that Morris implicitly recognizes that the trial court
revoked his probation because he had already received two intermediate sanctions.
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In short, the trial court revoked Morris' probation without reinstatement because it
had previously imposed the 3-day jail and 180-day prison intermediate sanctions. And
because the court had previously imposed the 3-day jail and 180-day prison intermediate
sanctions, the trial court could revoke Morris' probation and impose his original sentence
under K.S.A. 2017 Supp. 22-3716(c)(1)(E). As a result, the trial court properly revoked
Morris' probation.

Next, Morris' argument that the trial court acted unreasonably by revoking his
probation and imposing his underlying sentence hinges on his belief that drug addicts are
better served by remaining on probation so they can receive treatment. Morris contends
that his "crimes and violations stem from his addiction." Yet, Morris' argument ignores
that the trial court originally granted his dispositional departure request because he was to
complete inpatient drug and alcohol treatment. Accordingly, the trial court previously
provided Morris with the opportunity of drug treatment, which he failed. Furthermore,
Morris explicitly told the trial court that drugs were not involved when he violated his
probation the first and second time. Thus, despite Morris' contention to the contrary, not
all of Morris' violations stem from his addiction.

For these reasons, the trial court did not abuse its discretion by revoking Morris'
probation and imposing Morris' underlying sentence.

Affirmed.