State v. Thomas

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NOT DESIGNATED FOR PUBLICATION

No. 117,801

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JAMES E. THOMAS, JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed March 9, 2018.
Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2017 Supp. 21-6820(g) and (h).

Before MALONE, P.J., LEBEN and POWELL, JJ.

PER CURIAM: James E. Thomas, Jr. appeals the district court's decision revoking
his probation and ordering him to serve his underlying prison sentence. We granted
Thomas' motion for summary disposition in lieu of briefs pursuant to Kansas Supreme
Court Rule 7.041A (2018 Kan. S. Ct. R. 47). The State has filed a response and requested
that the district court's judgment be affirmed.

On November 20, 2014, Thomas pled guilty to one count of aggravated
intimidation of a witness or victim. On January 15, 2015, the district court sentenced
Thomas to 19 months' imprisonment and granted probation for 24 months to be
supervised by community corrections.

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The record reflects that Thomas violated his probation on two occasions and
received intermediate sanctions from the district court. Then, at a hearing on May 4,
2017, based on Thomas' stipulation, the district court found that he violated his probation
by committing the new offense of possession of a firearm by a convicted felon and also
by absconding from supervision. The district court revoked Thomas' probation and
ordered him to serve his underlying prison sentence. Thomas timely appealed.

On appeal, Thomas claims the district court "erred in revoking his probation and
in imposing the underlying prison sentence." Thomas acknowledges that once there has
been evidence of a violation of the conditions of probation, the decision to revoke
probation rests in the sound discretion of the district court.

The procedure for revoking a defendant's probation is governed by K.S.A. 2017
Supp. 22-3716. Generally, once there has been evidence of a violation of the conditions
of probation, the decision to revoke probation rests in the district court's sound discretion.
State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). An abuse of discretion
occurs when judicial action is arbitrary, fanciful, or unreasonable; is based on an error of
law; or 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 an abuse of discretion. State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012). A
district court abuses its discretion by committing an error of law in the application of
K.S.A. 2017 Supp. 22-3716 when revoking a defendant's probation. See State v. Still, No.
112,928, 2015 WL 4588297, at *1 (Kan. App. 2015) (unpublished opinion).

Here, the district court revoked Thomas' probation after finding that he had
committed a new felony while on probation and also that he had absconded from
supervision while on probation, and Thomas does not challenge these findings on appeal.
Thus, the district court was not required to impose additional intermediate sanctions in
this instance. See K.S.A. 2017 Supp. 22-3716(c)(8). Thomas already had violated his
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probation on two prior occasions. The district court's decision to revoke Thomas'
probation was not arbitrary, fanciful, or unreasonable, and it was not based on an error of
fact or law. Thomas has failed to show that the district court abused its discretion by
revoking his probation and ordering him to serve his underlying prison sentence.

Affirmed.