State v. Williamson

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NOT DESIGNATED FOR PUBLICATION

No. 120,451

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DOMINIC JOSEPH WILLIAMSON,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed November 27,
2019. Affirmed.

James M. Latta, of Kansas Appellate Defender Office, for appellant.

Moriah Plowden, legal intern, Matt J. Maloney, assistant district attorney, Marc Bennett, district
attorney, and Derek Schmidt, attorney general, for appellee.

Before LEBEN, P.J., GARDNER, J., and MCANANY, S.J.

PER CURIAM: Dominic J. Williamson was on probation with an underlying 16-
month prison sentence. After two rounds of probation violations and the commission of
new crimes, the district court revoked Williamson's probation and sent him off to serve
his prison sentence. Williamson claims the district court abused its discretion in doing so.
We see no abuse of discretion and affirm the district court.

Williamson was originally placed on probation in December 2017. In February
2018, the court found that he had violated the terms of his probation by failing to report
to his probation officer. The court imposed a three-day intermediate sanction.
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In March 2018, Williamson was again accused of violating the terms of his
probation when he tested positive for methamphetamine, failed to notify his probation
officer within 24 hours of having contact with law enforcement, failed to complete a drug
and alcohol evaluation, failed to obtain full-time employment, failed to pay costs, and
failed to report to his probation officer as directed.

Before any disposition on these newly charged probation violations, Williamson
was charged with two new felonies: aggravated battery with a firearm and evading police.
Williamson pled guilty to these new felony charges.

In November 2018, the district court held a hearing in which the court took up
both Williamson's claimed second probation violations and his sentencing on his two new
felony convictions. Williamson admitted to the probation violations.

Williamson moved for a downward departure sentence for his two new
convictions. He argued that he had been in foster homes his whole life, and at age 18 he
was discharged from foster care with nowhere to go. He is now age 19 and has become
addicted to drugs and had witnessed his girlfriend's murder. The State opposed a
departure sentence, arguing that Williamson was a danger to the community, having shot
someone and then fleeing from police in his vehicle at speeds of over 100 miles per hour
during rush hour traffic. While the district court was sympathetic to Williamson's difficult
upbringing, it denied his departure motion.

In Williamson's original case for which he had been on probation, the court
revoked Williamson's probation and ordered him to serve his underlying 16-month prison
sentence after serving his sentences for his two new convictions. It is this order that is the
subject of this appeal.

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This appeal does not involve the district court's denial of Williamson's departure
motion regarding his two new convictions. He argued in that motion that the court should
be lenient in sentencing him for his two new crimes based on his youth and difficult
upbringing.

In this appeal, Williamson asks us to find that the district court abused its
discretion in ordering him to serve his original prison sentence. He argues that the district
court should have considered these same factors of his youth and difficult upbringing in
deciding whether to allow him to continue on probation. He contends that research shows
that sending young adults like him to prison tends to turn them into a career criminals and
that prison increases the risk of future drug use. These matters were not raised before the
district court in connection with the separate issue of whether Williamson's underlying
sentence should be imposed.

There is a question whether Williamson has preserved this issue for appeal.
Generally, issues not raised before the district court cannot be raised on appeal. See State
v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). Here, Williamson's objections based
on his youth and difficult upbringing were directed at the imposition of sentences for his
new crimes, not the issue of what the district court should do about his repeated probation
violations.

Williamson argues that this issue is saved by the fact that we are permitted to
consider issues raised for the first time on appeal when the newly asserted theory
involves only a question of law arising from proved or admitted facts and is finally
determinative of the case. See State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).
Here, the underlying facts are not disputed, and our determination will be a final one in
this case. The only issue before us is a legal one: whether the district court abused its
discretion in its ruling. Besides, the district court had before it the facts about
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Williamson's youth and upbringing before deciding what to do about the probation
violations. Under these circumstances, we will consider Williamson's arguments.

Once there is evidence of a probation violation, the decision to revoke probation
rests within the sound discretion of the district court. State v. McFeeters, 52 Kan. App. 2d
45, 47, 362 P.3d 603 (2015). Abuse of judicial discretion occurs if the court's action is (1)
arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error
of fact. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015). A district court acts
arbitrarily, fancifully, or unreasonably when it adopts a view that no reasonable person
would adopt. Here, Williamson bears the burden of proving that the district court abused
its discretion. See State v. Davisson, 303 Kan. 1062, 1065, 370 P.3d 423 (2016).

Williamson pled guilty to the new crimes and admitted he violated the terms of his
probation. K.S.A. 2018 Supp. 22-3716(c)(8)(A) permits a court to revoke an offender's
probation without resorting to other intermediate sanctions when the offender commits a
new felony or misdemeanor. Here, the district court clearly had the authority to revoke
Williamson's probation and order that he serve his underlying sentence. The district court
noted that Williamson had been given probation and that his probation officer could have
put him in touch with needed resources. The district court had previously sanctioned
Williamson for violating probation and ordered that Williamson's probation continue
despite his violations. But then Williamson was caught after he shot a man and fled from
the police by driving at speeds over 100 miles per hour during rush hour traffic. We find
no support for the notion that under these circumstances no reasonable person would
make the decision to remove Williamson from society and send him to serve his
underlying prison sentence. The district court did not abuse its discretion in its ruling.

Affirmed.