State v. Taylor

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NOT DESIGNATED FOR PUBLICATION

Nos. 118,158
118,159

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DANE LARON TAYLOR,
Appellant.


MEMORANDUM OPINION

Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed January 18, 2019.
Affirmed.

Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before GARDNER, P.J., HILL and SCHROEDER, JJ.

PER CURIAM: Dane Laron Taylor appeals the revocation of his probation. After
being convicted by a jury of multiple felonies while on probation, Taylor contends the
district court abused it discretion when it denied his request for intermediate sanctions
instead of imposing his underlying sentences. We find no abuse of discretion and affirm.

In 13CR265, Taylor pled no contest to possession of more than 25 grams, but less
than 450 grams, of marijuana with the intent to distribute and unlawful use of drug
paraphernalia. The district court sentenced him to 65 months' incarceration for possession
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with the intent to distribute and 10 months' incarceration for the unlawful use of
paraphernalia. However, the district court granted a downward dispositional departure,
suspended Taylor's sentence, and ordered him to serve 36 months' probation.

While on probation in 13CR265, Taylor pled guilty in 14CR2393 to driving under
the influence (DUI), driving while suspended, and driving while a habitual violator. The
district court sentenced Taylor to 12 months in jail for the DUI and 12 months in jail for
driving while suspended and driving while a habitual violator. However, the district court
suspended the sentences and placed Taylor on 90 days' house arrest with 12 months'
probation for the DUI. It also suspended the sentences for driving while suspended and
driving while a habitual violator and placed Taylor on 12 months' probation.

Later, in 16CR1491, a jury convicted Taylor of three counts of aggravated assault
with a deadly weapon, aggravated robbery, criminal possession of a firearm, distribution
of hallucinogenic drugs, and two counts of possession of drug paraphernalia. The State
moved to revoke his probation in 13CR265 and 14CR2393. The district court conducted
a joint sentencing and probation revocation proceeding. After sentencing Taylor in
16CR1491, the district court addressed the State's motion to revoke probation in
13CR265 and 14CR2393.

Although he maintained his innocence, Taylor acknowledged the district court
could take judicial notice of his convictions in 16CR1491 and acknowledged the
convictions would show he violated his probation. Taylor also stipulated he failed to
remain drug and alcohol free. The State recommended Taylor serve his underlying
sentences because he committed very serious felonies while on probation. Taylor argued
the district court should find it would be manifest injustice to run his sentences
consecutively and requested a 120- or 180-day intermediate sanction instead of
incarceration.

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The district court ordered Taylor serve his underlying sentences in 13CR265 and
14CR2393 but ran the sentences concurrent to each other.

Unless otherwise required by law, probation is a privilege not a matter of right.
State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Here, Taylor acknowledged the
district court could take judicial notice of the basis for his parole violation—his new
convictions in 16CR1491. After determining a probation violation occurred, the district
court must determine whether the violation warranted revocation of probation. State v.
Skolaut, 286 Kan. 219, 227, 182 P.3d 1231 (2008). This court reviews the district court's
decision to revoke probation for an abuse of discretion. See State v. Brown, 51 Kan. App.
2d 876, 879, 357 P.3d 296 (2015), rev. denied 304 Kan. 1018 (2016). An abuse of
discretion occurs if the district court's action was arbitrary, fanciful, or unreasonable or if
the decision was based on an error of law or fact. State v. Jones, 306 Kan. 948, Syl. ¶ 7,
398 P.3d 856 (2017). The party asserting the trial court abused its discretion bears the
burden of showing an abuse of discretion. State v. Huckey, 51 Kan. App. 2d 451, 454,
348 P.3d 997, rev. denied 302 Kan. 1015 (2015).

Taylor argues the district court abused its discretion when it bypassed intermediate
sanctions and ordered him to serve his underlying sentences in 13CR265 and 14CR2393.
Under these facts, he claims it would serve the ends of justice to impose intermediate
sanctions in 13CR265 and 14CR2393 after his 110-month prison sentence in 16CR1491.
However, Taylor also acknowledges K.S.A. 2017 Supp. 22-3716(c)(8)(A) permits the
district court to bypass intermediate sanctions, revoke probation, and impose a prison
sentence if the district court determines the probationer committed a new felony or
misdemeanor while on probation. Here, the court took judicial notice of his convictions
in 16CR1491 for three counts of aggravated assault with a deadly weapon, aggravated
robbery, criminal possession of a firearm, distribution of hallucinogenic drugs, and two
counts of possession of drug paraphernalia. Although he maintains his innocence, he was
found guilty by a jury. K.S.A. 2017 Supp. 22-3716(c)(8)(A) states: "[T]he court may
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revoke the probation . . . of an offender pursuant to subsection (c)(1)(E) without having
previously imposed a sanction pursuant to subsection (c)(1)(B), (c)(1)(C) or (c)(1)(D)."
(Emphasis added.) Here the district court simply chose to follow K.S.A. 2017 Supp. 22-
3716(c)(8)(A), utilizing its discretionary authority to impose the underlying sentences in
13CR265 and 14CR2393. The district court's decision to not impose intermediate
sanctions upon revoking Taylor's probation was not based on an error of law or fact, and
it was not arbitrary, fanciful, or unreasonable. The district court did not abuse its
discretion.

Affirmed.