State v. Shifferaw ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,863
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
BEAKAL SHIFFERAW,
Appellant.
MEMORANDUM OPINION
Appeal from Johnson District Court; THOMAS KELLY RYAN, judge. Opinion filed June 18, 2021.
Affirmed.
Submitted by the parties for summary disposition pursuant to K.S.A. 2020 Supp. 21-6820(g) and
(h).
Before MALONE, P.J., POWELL and WARNER, JJ.
PER CURIAM: Beakal Shifferaw appeals the district court's revocation of his
probation and the imposition of his underlying prison sentence. We granted Shifferaw's
motion for summary disposition pursuant to Supreme Court Rule 7.041A (2021 Kan. S.
Ct. R. 48). The State has not responded. After a review of the record, we affirm.
Pursuant to a plea agreement with the State, Shifferaw pled guilty to distribution
of marijuana, a severity level 3 drug felony, and no drug tax stamp, a severity level 10
nonperson felony. Shifferaw committed his crimes in April 2013. On June 26, 2014, the
district court sentenced him to an aggregate sentence for both crimes of 51 months in
prison but granted Shifferaw's request for a dispositional departure to probation for 36
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months. Shifferaw was allowed to have his probation supervised by the State of
California.
The State sought to revoke Shifferaw's probation on July 9, 2015, alleging he had
failed to report to probation authorities in California and had been arrested for new
crimes in the District of Columbia. Apparently during this time, Shifferaw was also
arrested for crimes he committed in Virginia prior to being placed on probation and spent
several years incarcerated there before returning to Kansas in November 2019 to face the
allegations he violated the terms of his probation in Kansas. On December 3, 2019, the
State amended its allegations against Shifferaw to include absconding.
A probation violation hearing was held on January 22, 2020, and the State
presented evidence of Shifferaw's probation violations. In particular, the evidence
showed that Shifferaw had failed to report to California probation authorities for over a
year and had spent many months outside that state without obtaining permission and
without informing anyone of his whereabouts. The district court found Shifferaw had
absconded, revoked his probation, and ordered that he serve his underlying prison
sentence.
Shifferaw's sole argument on appeal is that the district court abused its discretion
in revoking his probation and imposing his underlying prison sentence. The State must
prove a probation violation by a preponderance of the evidence. State v. Lloyd, 52 Kan.
App. 2d 780, 782, 375 P.3d 1013 (2016). We review the district court's factual findings
for substantial competent evidence. State v. Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.3d
844 (2007). Once a probation violation has been established, the decision to revoke
probation is within the sound discretion of the district court. State v. Coleman, 311 Kan.
332, 334, 460 P.3d 828 (2020). A district court abuses its discretion if it bases its decision
on legal or factual errors or if no reasonable person would agree with its decision. State v.
Ballou, 310 Kan. 591, 615, 448 P.3d 479 (2019). Shifferaw bears the burden to show an
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abuse of discretion by the district court. See State v. Thomas, 307 Kan. 733, 739, 415
P.3d 430 (2018).
In this case, the district court's discretion on whether to revoke probation was
limited by the intermediate sanctions outlined in K.S.A. 2013 Supp. 22-3716. At the time
Shifferaw's probation was revoked, a district court was required to impose graduated
intermediate sanctions before revoking an offender's probation. See K.S.A. 2013 Supp.
22-3716(c); State v. Huckey, 51 Kan. App. 2d 451, 454, 348 P.3d 997 (2015). There are
exceptions which permit a district court to revoke a defendant's probation without having
previously imposed the statutorily required intermediate sanctions, one of which is when
the defendant absconds from supervision. See K.S.A. 2013 Supp. 22-3716(c)(8).
However, simply failing to report to a supervising officer does not equate to absconding.
See Huckey, 51 Kan. App. 2d at 457; see also State v. Dooley, 308 Kan. 641, Syl. ¶ 4,
423 P.3d 469 (2018) ("[T]he State must show, and the district court must find, that the
probation violator engaged in some course of action [or inaction] with the conscious
intent to hide from or otherwise evade the legal process.").
Here, the State alleged, and the district court specifically found, Shifferaw had
absconded while on probation. But Shifferaw merely claims the district court abused its
discretion by revoking his probation and ordering him to serve his original sentence. He
advances no argument as to why the evidence in the record fails to show he absconded.
Thus, we consider any challenge to the district court's conclusion that Shifferaw
absconded as abandoned. See State v. Arnett, 307 Kan. 648, 650, 413 P.3d 787 (2018)
(issues not briefed deemed waived or abandoned).
As to the wisdom of the district court's revocation of Shifferaw's probation, we see
no abuse of discretion. Shifferaw failed to report for months, if not years, left the State of
California without permission and without informing authorities of his whereabouts, got
arrested and ultimately incarcerated, and absconded. We have no trouble concluding it
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was reasonable for the district court to revoke Shifferaw's probation and order he serve
his underlying prison sentence.
Affirmed.
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