State v. Scott

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NOT DESIGNATED FOR PUBLICATION

No. 119,928

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DEMAREO SCOTT,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Opinion filed May 3, 2019.
Affirmed.

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

Before STANDRIDGE, P.J., GARDNER, J., and WALKER, S.J.

PER CURIAM: Demareo T. Scott appeals the district court's decision to revoke his
probation and impose his underlying prison sentence. We granted Scott's motion for
summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h) and Supreme
Court Rule 7.041A (2019 Kan. S. Ct. R. 47). The State does not object to summary
disposition but requests that we affirm the revocation of Scott's probation. After review,
we find no abuse of discretion on the part of the district court and affirm.

Factual and procedural background

As part of a plea agreement with the State, Scott pled guilty to criminal possession
of a weapon by a convicted felon, criminal threat, and aggravated endangering a child. At
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his sentencing in July 2017, the district court found that a special rule applied because
Scott had committed his crimes while incarcerated, on probation, parole, conditional
release, or on postrelease supervision for a felony. It sentenced Scott to a total prison
term of 24 months but placed Scott on probation for a period of 18 months.

In July 2018, the State sought to revoke Scott's probation, alleging, among other
things, that Scott had committed two new crimes: domestic violence battery and criminal
damage to property. The State further alleged that Scott had failed to make payment on
his court costs. At his probation violation hearing, Scott stipulated that he had violated
the conditions of his probation by not paying costs, and he did not contest that he had
committed new crimes while on probation. Both Scott and the State requested three days
in jail—an intermediate sanction. But the district court, citing Scott's commission of new
crimes while on probation and his "long history of domestic violence offenses," revoked
Scott's probation and ordered him to serve his underlying sentences. Scott timely appeals.

Analysis

Scott argues solely that "the district court erred in revoking the defendant's
probation." 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 is (1) arbitrary,
fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted
by the trial court; (2) based on an error of law; or (3) based on an error of fact. State v.
Jones, 306 Kan. 948, 957, 398 P.3d 856 (2017). Scott 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).

The district court's discretion is limited by our statute that generally requires the
district court to impose intermediate sanctions before revoking an offender's probation.
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K.S.A. 2018 Supp. 22-3716. See State v. Huckey, 51 Kan. App. 2d 451, 454, 348 P.3d
997 (2015). But one of the exceptions to that rule permits a district court to revoke
probation without having previously imposed intermediate sanctions if the offender
commits a new crime while on probation. K.S.A. 2018 Supp. 22-3716(c)(8)(A). That is
the case here.

The district court found by a preponderance of the evidence that Scott committed
domestic violence battery and criminal damage to property, thus violating the terms of his
probation by committing new crimes while on probation. Scott does not argue that the
district court lacked substantial competent evidence of his commission of those crimes.
We apply these principles when construing what satisfies the "new felony or
misdemeanor" exception found in K.S.A. 2018 Supp. 22-3716(c)(8)(A):

"In the context of adult criminal procedure, no criminal conviction, or even
criminal charges, are required to justify revocation of probation. See State v. Rasler, 216
Kan. 292, Syl. ¶ 1, 532 P.2d 1077 (1975) (to sustain order revoking probation because of
commission of new criminal offense, State need not prove commission of offense beyond
reasonable doubt); see also Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 33 L.
Ed. 2d 484 (1972) (parole revocation not part of criminal prosecution, so full panoply of
constitutional rights in criminal proceeding does not apply to revocation proceedings);
Standlee v. Rhay, 557 F.2d 1303, 1307 (9th Cir. 1977) (criminal acquittal does not bar
parole revocation based on conduct asserted at criminal trial); State v. Thompson, 687
N.E.2d 225, 229 (Ind. App. 1997) (court may revoke probation under preponderance of
evidence standard even when State did not convict defendant by establishing guilt beyond
reasonable doubt); Vaughn v. State, 962 P.2d 149, 152 (Wyo. 1998) (court may revoke
probation even though defendant acquitted in criminal proceeding based on same act)." In
re E.J.D., 301 Kan. 790, 795, 348 P.3d 512 (2015).

Thus, the district court had the authority to revoke Scott's probation and impose his
underlying prison sentences. Scott fails to persuade us that no reasonable person would
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have taken the view of the district court and revoked Scott's probation based on his
commission of new crimes.

We note that the district court also found that Scott's continued probation would
"jeopardize the safety of the members of the public." But the district court did not make
that finding with particularity, as the statute requires. See K.S.A. 2018 Supp. 22-
3716(c)(9)(A) (providing the court can bypass intermediate sanctions if the "court finds
and sets forth with particularity the reasons for finding that the safety of members of the
public will be jeopardized or that the welfare of the offender will not be served by such
sanction"); State v. McFeeters, 52 Kan. App. 2d 45, 48, 362 P.3d 603 (2015) (finding a
court making findings under this subsection must explicitly state how the public's safety
would be jeopardized by intermediate sanctions). Were this the sole exception invoked,
we would find an abuse of discretion. But it is not.

We find the district court did not abuse its discretion by revoking Scott's probation
and imposing his underlying prison sentence.

Affirmed.