State v. Peres

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NOT DESIGNATED FOR PUBLICATION

No. 119,332

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ANGELA D. PERES,
Appellant.

MEMORANDUM OPINION

Appeal from Lyon District Court; MERLIN G. WHEELER, judge. Opinion filed October 26, 2018.
Affirmed.

Submitted by the parties for summary disposition pursuant to K.S.A. 2017 Supp. 21-6820(g) and
(h).

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

PER CURIAM: Angela D. Peres appeals the district court's decision to revoke her
probation and impose her underlying sentence. We granted Peres' motion for summary
disposition pursuant to Supreme Court Rule 7.041A (2018 Kan. S. Ct. R. 47). The State
did not file a response. After a review of the record, we affirm the district court.

On December 28, 2016, the State charged Peres with one count of trafficking in
contraband in a correctional facility and one count of possession of methamphetamine.
The parties entered into a plea agreement in which Peres agreed to plead no contest to
possession of methamphetamine in exchange for the State's agreement to dismiss the
remaining charge. As part of the agreement, the parties also agreed to recommend the
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standard number in the presumptive sentence grid box. At Peres' sentencing in March
2017, the district court imposed the aggravated presumptive sentence of 14 months in
prison—because this case occurred while she was incarcerated—but placed Peres on
probation from that sentence for a period of 18 months.

Unfortunately, Peres had difficulty refraining from illegal drug use. Between
August 2017 and January 2018, Peres violated the terms of her probation—generally due
to testing positive for illegal drugs and/or alcohol—and was ordered to serve a 48-hour
jail sanction, a 3-day jail sanction, a 7-day jail sanction, a 120-day prison sanction, and
another 7-day jail sanction. In January 2018, the State recommended her probation be
revoked due to additional probation violations, including testing positive for illegal drugs.
In March 2018, after Peres stipulated to violating the terms of her probation, the district
court revoked her probation and ordered that she serve her underlying prison sentence.

On appeal, Peres argues that the district court abused its discretion by revoking her
probation and ordering her to serve the underlying prison sentence. Specifically, Peres
argues she should be given another chance at drug treatment.

Once a violation has been established, the decision to revoke probation is within
the discretion of the district court. See State v. Skolaut, 286 Kan. 219, 227-28, 182 P.3d
1231 (2008). Judicial discretion is abused when no reasonable person would have taken
the action of the district court because it was arbitrary, fanciful, or unreasonable or when
the action was based on an error of law or an error of fact. State v. Ward, 292 Kan. 541,
550, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012). This discretion is limited
by intermediate sanctions as outlined in K.S.A. 2017 Supp. 22-3716. Peres bears the
burden of showing such abuse of discretion. See State v. Rojas-Marceleno, 295 Kan. 525,
531, 285 P.3d 361 (2012).

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K.S.A. 2017 Supp. 22-3716(c) requires a district court to impose graduated
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). Intermediate
sanctions include a 2- or 3-day sanction of confinement in a county jail, a 120-day prison
sanction, or a 180-day prison sanction. K.S.A. 2017 Supp. 22-3716(c)(1)(B), (C), (D).
Under these limitations, the district court may, among other actions, revoke probation and
order a violator to serve the balance of his or her original sentence only after both a jail
sanction and a prison sanction have been imposed. K.S.A. 2017 Supp. 22-3716(c)(1)(E).

Here, it is undisputed that Peres violated the terms of her probation and had
previously received intermediate sanctions—both jail and prison sanctions—as required
by K.S.A. 2017 Supp. 22-3716(c)(1). Accordingly, the district court had the discretion to
revoke Peres' probation. Peres argues she would be better served by additional drug
treatment, but as the district court pointed out, Peres had multiple opportunities for drug
treatment yet continued to use drugs and violate the terms of her probation. As Peres fails
to persuade us that no reasonable person would have taken the view of the district court,
we conclude the district court did not abuse its discretion in revoking her probation and
ordering Peres to serve her underlying sentence.

Affirmed.