State v. Rutherford

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NOT DESIGNATED FOR PUBLICATION

No. 121,132

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JOHN JEREMIAH RUTHERFORD,
Appellant.

MEMORANDUM OPINION

Appeal from Lyon District Court; W. LEE FOWLER, judge. Opinion filed August 23, 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: John Jeremiah Rutherford appeals the district court's revocation of
his probation and imposition of his prison sentence. We granted Rutherford's motion for
summary disposition pursuant to Supreme Court Rule 7.041A (2019 Kan. S. Ct. R. 47).
The State has filed no response. After a review of the record, we affirm.

Rutherford pled no contest to one count each of possession of methamphetamine
and criminal possession of a firearm. In September 2018, the district court sentenced
Rutherford to a controlling prison sentence of 42 months. However, the district court
granted his motion for dispositional departure and placed him on probation for a term of
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18 months. As one condition of probation, the district court ordered Rutherford to
undergo a drug court evaluation.

The record on appeal reveals that because of Rutherford's failure to appear at two
drug court sessions, he was ordered and served two separate sanctions of three days and
seven days in jail. Then, in February 2019, the drug court issued a bench warrant for
Rutherford's arrest due to his failure to appear. The State sought to revoke his probation.
In the supporting affidavit, the State alleged Rutherford had violated the terms of his
probation by submitting five urinalysis (UA) samples that tested positive for
methamphetamine, failing to submit three UAs, failing to attend drug court sessions, and
failing to attend his group sessions. The State also alleged Rutherford had violated the
terms of his probation by committing new crimes based on his arrest and pending charges
in a new case.

At the probation revocation hearing, Rutherford stipulated to violating his
probation as the State had alleged. Because Rutherford's new charges included a severity
level 3 drug charge for possession with intent to distribute methamphetamine, the district
court revoked Rutherford's probation due to his commission of new crimes and imposed
his underlying prison sentence.

On appeal, Rutherford argues the district court abused its discretion by revoking
his probation and imposing his underlying prison term instead of imposing an
intermediate sanction that would allow him to better address his drug addiction through
treatment.

Once a probation violation has been established, the decision to revoke probation
is within the discretion of the district court. State v. Skolaut, 286 Kan. 219, 227, 182 P.3d
1231 (2008). A judicial action constitutes an abuse of discretion if (1) no reasonable
person would take the view adopted by the trial court; (2) it is based on an error of law;
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or (3) it is based on an error of fact. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587
(2015). Rutherford bears the burden of showing an abuse of discretion. See State v.
Rojas-Marceleno, 295 Kan. 525, 531, 285 P.3d 361 (2012).

The district court's discretion to revoke a defendant's probation is limited by the
intermediate sanctions requirements outlined in K.S.A. 2018 Supp. 22-3716. Generally, a
district court is required to impose intermediate sanctions before revoking an offender's
probation. See K.S.A. 2018 Supp. 22-3716(c); 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 when the offender commits a
new crime while on probation. See K.S.A. 2018 Supp. 22-3716(c)(8)(A). Another
exception permitting revocation without imposing sanctions is if the offender's probation
was "originally granted as the result of a dispositional departure." K.S.A. 2018 Supp. 22-
3716(c)(9)(B).

While Rutherford stipulated to violating the terms and conditions of his probation,
it is unclear from the record whether he stipulated to committing new crimes as the State
merely alleged that he had been arrested and charged with new crimes. But given that
Rutherford was originally placed on probation as a result of a dispositional departure, the
district court had the authority to revoke Rutherford's probation. While Rutherford
concedes these points, he argues the district court abused its decision because he should
have been given another chance to obtain drug treatment. In light of Rutherford's prior
failures at probation, he fails to persuade us that no reasonable person would agree with
the district court's decision. The district court did not abuse its discretion in revoking
Rutherford's probation and imposing his underlying prison sentence.

Affirmed.