State v. Serrano

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NOT DESIGNATED FOR PUBLICATION

Nos. 120,965
120,966

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ANGEL SERRANO,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed March 27,
2020. Affirmed.

Heather Cessna and Peter Maharry, of Kansas Appellate Defender Office, for appellant.

Ethan Zipf-Sigler, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.

Before GARDNER, P.J., BUSER, J., and BURGESS, S.J.

PER CURIAM: In these consolidated cases, Angel Serrano appeals the district
court's revocation of his probation. Although he concedes the district court had the
statutory authority to revoke his probation and order him to serve his remaining prison
sentences, he contends the district court abused its discretion in so doing.




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Factual and Procedural Background

In April 2015, the State charged Serrano with one count of fleeing and eluding a
police officer under K.S.A. 2014 Supp. 8-1568(a), (b), a severity level 9 person felony.
Serrano pleaded guilty. One week later, the State charged Serrano with one count of
robbery in violation of K.S.A. 2014 Supp. 21-5420(a), a severity level 5 person felony,
for allegedly taking a vehicle from a person by force. Serrano then pleaded no contest to
that crime.

In May 2016, the district court held a sentencing hearing for both of Serrano's
cases. For the fleeing and eluding conviction, the district court sentenced Serrano to 13
months in prison but granted a dispositional departure from presumptive prison to
probation for 12 months.

For the robbery conviction, the district court sentenced Serrano to 120 months in
prison but granted a dispositional departure to 36 months of probation.

In August 2016, because of numerous alleged violations, the State moved to
revoke Serrano's probation in both cases. The district court held a hearing on these
allegations. At the same hearing, the district court sentenced Serrano in a third criminal
case—trafficking in contraband in the correctional facility. At the hearing, Serrano
stipulated that he had violated his probation by:

(1) failing to comply with substance abuse treatment recommendations;
(2) failing to maintain contact with his intensive supervision officer (ISO);
(3) failing to submit to urinalysis (UA) required by court order and submitting
UAs that tested positive for amphetamines; and
(4) failing to pay his court costs.
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The State also asked the district court to specifically find that Serrano presented a
continuing danger to the community because of his drug use. It argued that Serrano was
high on methamphetamine when he committed his crimes and had not shown a
willingness to achieve sobriety while on probation.

Serrano agreed that his problems related to his drug use. Serrano acknowledged
his failed UA tests but argued that, at the time of the revocation hearing, he had been
clean probably for the longest period since he was a teenager. Serrano also stated that
while in custody, he had attended Bible study and Narcotics Anonymous/Alcoholics
Anonymous. Serrano argued that he could be a successful candidate on probation if the
district court gave him another opportunity because he had been sober for so long. And
he argued that his failure to maintain contact with his ISO was because he had been in the
hospital for so long after he was stabbed. In response, the State countered that this
stabbing had occurred when Serrano scuffled with a prostitute while he was high.

The district court judge ultimately agreed with the State and revoked Serrano's
probation, finding that he was a danger to himself and to the community based on his
continued drug use and failure to attend treatment when given the chance to do so while
on probation. The district court also noted that the conviction for trafficking in
contraband in the correctional facility also could have supported revoking probation here.
Ultimately, the district court judge ordered Serrano to serve his original underlying
sentence of 13 months for his fleeing and eluding charge but modified his underlying
sentence in the robbery charge to 90 months. The imposed sentences were to run
consecutively.

Serrano timely filed notices of appeal in both cases. This court consolidated the
cases for appeal.


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Did the District Court Abuse its Discretion When it Revoked Serrano's Probation?

On appeal, Serrano does not challenge the district court's finding that he violated
the conditions of his probation. His only argument is that the court abused its discretion
by revoking his probation and ordering him to serve his partially modified prison
sentences.

We review the decision to revoke probation for an abuse of discretion. State v.
Skolaut, 286 Kan. 219, 227, 182 P.3d 1231 (2008). A judicial action constitutes an abuse
of discretion if it is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law;
or (3) based on an error of fact. State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931
(2018). The party asserting the district court abused its discretion bears the burden of
showing that abuse. State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018). Serrano
does not argue that the district court's decision was based on an error of law or an error of
fact; he only argues that the decision to revoke his probation was unreasonable.

The available punishments for probation violations are outlined in K.S.A. 2018
Supp. 22-3716. That statute often requires the district court to impose an intermediate
sanction. Under K.S.A. 2018 Supp. 22-3716(c)(9)(B), however, the district court may
revoke probation without imposing an intermediate sanction if the original probation term
resulted from a dispositional departure. Serrano admits that the district court had the
authority under this subsection to revoke his probation without imposing an intermediate
sanction.

Serrano argues solely that the district court abused its discretion by refusing to
reinstate his probation. First, he contends that by amending K.S.A. 2018 Supp. 22-
3716(c)(1), the Legislature intended to "reduce recidivism in Kansas through shorter,
swifter punishments that have a greater impact on changing a probationer's behavior."
Second, Serrano maintains that prison should be reserved for more harmful offenders that
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leave courts with no less costly choice. Third, Serrano argues that the district court failed
to acknowledge that he was "better prepared to fight" his serious drug problem after
spending time in custody.

We find Serrano's arguments unconvincing. He was able to get sober only after
being returned to custody and not while out on probation. When given the opportunity to
get clean on probation, Serrano failed to attend treatment and continued to use drugs.
Moreover, Serrano's drug use often led to violence, such as when he committed robbery
by taking a vehicle by force or when he was stabbed as the result of an altercation.
Serrano's argument that the court should reserve prison for violent offenders is
unpersuasive because Serrano used force when he committed robbery. And the crime of
fleeing and eluding has high potential for violence and harm to the community.

Under the circumstances, a reasonable person could agree with the district court's
decision to revoke Serrano's probation and impose the modified sentences. As a result,
the court did not abuse its discretion in revoking his probation and ordering him to serve
his partially modified prison sentences.

Affirmed.