State v. Sears

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NOT DESIGNATED FOR PUBLICATION

No. 113,030

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JAROD SEARS,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; GREGORY L. WALLER, judge. Opinion filed November 6,
2015. Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2014 Supp. 21-6820(g) and (h).

Before MALONE, C.J., PIERRON and SCHROEDER, JJ.

Per Curiam: Jarod G. Sears appeals the district court's denial of his motion for a
sentence modification at his probation revocation hearing. We granted Sears' motion for
summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2014 Kan.
Ct. R. Annot. 66). The State filed a response and does not contest summary disposition of
the issue raised by Sears.

In 12CR2903, Sears pled guilty to four counts of vehicular burglary, each a
severity level 9 nonperson felony, and one count of misdemeanor theft. On May 1, 2013,
the district court sentenced Sears to a term of imprisonment for the felony convictions
and a consecutive sentence of 12 months in the county jail for the misdemeanor theft. The
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district court initially placed Sears on probation with community corrections for 24
months. Sears did not timely appeal his sentence.

Sears later stipulated to violating the conditions of his probation. At a hearing on
November 12, 2014, Sears argued that he no longer wished to continue probation and
would serve the underlying sentence, but he requested that the district court modify the
county jail portion of his sentence to a concurrent term. The district court denied the
request. Sears timely appealed from that ruling.

On appeal, Sears argues that the district court abused its discretion by denying his
motion for sentence modification. A judicial action constitutes an abuse of discretion if
the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3)
is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). The
party asserting the district court abused its discretion bears the burden of showing such
abuse of discretion. State v. Rojas-Marceleno, 295 Kan. 525, 531, 285 P.3d 361 (2012).

Upon revocation of probation, the district court has the ability to impose the
original sentence or any lesser sentence. See K.S.A. 2014 Supp. 22-3716(b). Thus, the
district court had discretion to grant Sears' request to modify the county jail portion of his
sentence to a concurrent term. But Sears offers no reason why the district court abused its
discretion in denying the request. The district court's decision to deny Sears' motion for a
sentence modification was not arbitrary, fanciful, or unreasonable, and the decision was
not based on an error of law or fact. See Mosher, 299 Kan. at 3. Thus, Sears has failed to
meet his burden of establishing that the district court abused its discretion in denying the
request for a sentence modification.

Affirmed.