State v. White

NOT DESIGNATED FOR PUBLICATION

No. 118,462

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TODD DWAYNE WHITE,
Appellant.


MEMORANDUM OPINION

Appeal from Kingman District Court; FRANCIS E. MEISENHEIMER, judge. Opinion filed July 6,
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: Todd White appeals the district court's decision to revoke his
probation and require him to serve a modified underlying prison sentence. After White
admitted to the State's alleged probation violations, the court found that reinstating White's
probation would jeopardize public safety and would not serve his interests—findings that
give the court the discretion to revoke probation without first ordering a short-term stay in
jail. We find no abuse of discretion in the district court's decision to do so.

White pleaded guilty to one count of burglary of a dwelling and one count of felony
theft in exchange for the State dropping an additional charge against him. As part of its plea
agreement with White, the State recommended the court impose the aggravated sentence on
both counts to run consecutively (one after the other). The district court sentenced White to
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24 months of probation—24 months for his burglary conviction and 12 months for his theft
conviction to be served concurrently (at the same time). The court also ordered underlying
sentences of 16 months in prison for the burglary conviction and 6 months in prison for the
theft conviction, which White would have to serve if he didn't successfully complete
probation.

About a year and a half after White's sentencing, the State moved to revoke White's
probation based on allegations that White had committed several probation violations. The
State's supporting affidavit claimed that White violated his probation by failing to report to
his probation officer on two different occasions, committing a new crime (theft), and failing
to make payments towards his court costs.

By the time White appeared before the court for his probation-revocation hearing,
he was already serving a prison sentence for a different Sedgwick County case. After
admitting to the State's alleged probation violations, both the State and White's attorney
asked the court to revoke his probation and order White to serve a modified underlying
sentence of eight months in prison, which he would serve consecutive to the sentence he
was serving at the time of his revocation hearing.

White now argues that the district court abused its discretion by revoking his
probation and ordering him to serve a modified prison sentence. The legal rules applicable to
this appeal are straightforward. A district court must base its decision to revoke probation on
a factual finding that a condition of probation has been violated. Once the district court has
established a violation, the decision to revoke probation has been traditionally considered
within the discretion of the district court. State v. Skolaut, 286 Kan. 219, 227-28, 182 P.3d
1231 (2008); see State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001).

That discretion is now limited by the statute governing probation revocation. K.S.A.
2017 Supp. 22-3716(b) and (c) require that the district court impose intermediate
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sanctions—some shorter period of time in the county jail or a state prison—before ordering
that the defendant serve the full underlying prison term. But there are a few exceptions to
this rule. For example, the court doesn't have to impose intermediate sanctions if it "finds
and sets forth with particularity the reasons for finding" that reinstating the defendant's
probation would endanger the public, or that the offender's welfare wouldn't be served by
an intermediate sanction. K.S.A. 2017 Supp. 22-3716(c)(9)(A).

In this case, the court found that the safety of the public would be jeopardized since
White had not been reporting to his probation officer as required and committed another
theft—one of the crimes for which he was on probation in the first place. The court also
found that intermediate sanctions would not serve White's interests based on "his lack of
performance on probation." White doesn't challenge the factual basis for district court's
findings under K.S.A. 2017 Supp. 22-3716(c)(9).

Since the district court wasn't required to impose any of the intermediate sanctions
set out in the probation-revocation statute, we review its decision to revoke White's
probation for an abuse of discretion. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801
(2011). Unless the district court's decision was based on a legal or factual error, we may
find an abuse of discretion only when no reasonable person would agree with the district
court's decision. State v. McCullough, 293 Kan. 970, 980-81, 270 P.3d 1142 (2012); State
v. Gumfory, 281 Kan. 1168, Syl. ¶ 1, 135 P.3d 1191 (2006).

We find nothing unreasonable about the district court's decision here. White
admitted to violating his probation. Given White's apparent lack of interest in abiding by
the terms of his probation along with the danger White could pose to the public if he
continued committing the crimes for which he was originally sentenced, the district court
could reasonably conclude that White was not an appropriate candidate for probation and
impose his prison sentence.

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On White's motion, we accepted this appeal for summary disposition under K.S.A.
2017 Supp. 21-6820(g) and (h) and Supreme Court Rule 7.041A (2018 Kan. S. Ct. R.
47). We have reviewed the record available to the sentencing court, and we find no error
in its decision to revoke White' probation.

We affirm the district court's judgment.