State v. Stieb ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,620
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
MICHAEL J. STIEB,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; DAVID L. DAHL, judge. Opinion filed December 3, 2021.
Affirmed.
Submitted by the parties for summary disposition under K.S.A. 2020 Supp. 21-6820(g) and (h).
Before ARNOLD-BURGER, C.J., MALONE, J., and BURGESS, S.J.
PER CURIAM: Michael J. Stieb appeals the district court's decision revoking his
probation and ordering him to serve his original sentence. Stieb moved for summary
disposition under Kansas Supreme Court Rule 7.041A (2021 Kan. S. Ct. R. 48). The
State responded asking this court to affirm the district court's ruling. This court granted
Stieb's motion for summary disposition and affirms the district court's decision.
FACTS
On March 20, 2019, Stieb pled guilty to one count of possession of
methamphetamine for a crime he committed in June 2018. On August 6, 2019, the district
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court sentenced Stieb to 30 months' imprisonment but made border box findings and
granted probation for 18 months to be supervised by community corrections.
Stieb was unsuccessful on probation. On December 12, 2019, Stieb waived his
right to an evidentiary hearing and admitted to not reporting to his intensive supervision
officer (ISO), consuming methamphetamine and cocaine, and possessing drug
paraphernalia. The district court ordered Stieb to serve a 60-day jail sanction, suspended
upon Stieb's acceptance into inpatient treatment or the residential program.
Stieb continued to violate the conditions of his probation by not reporting to his
ISO, not attending treatment, and not keeping the ISO informed of his address. He also
committed the crime of criminal deprivation of property. At a hearing on January 5,
2021, the district court found that Stieb violated the conditions of his probation by failing
to contact his ISO and by committing the new crime of criminal deprivation of property.
The district court also found Stieb's welfare was not served by continued probation
because he did not engage in treatment, he did not report when required, and he
committed a new crime. The district court revoked Stieb's probation and ordered him to
serve his original sentence. Stieb timely appealed the district court's judgment.
ANALYSIS
On appeal, Stieb claims the district court "abused its discretion in revoking his
probation and ordering him to serve his underlying prison sentence." He acknowledges
the district court may revoke probation without having previously imposed intermediate
sanctions where the offender commits a new crime while on probation.
Once a probation violation has been established, the district court's decision to
revoke the offender's probation and impose the original sentence is discretionary unless
otherwise limited by statute. See State v. Dooley, 308 Kan. 641, 647, 423 P.3d 4692
(2018). A court abuses its discretion if its decision is arbitrary, fanciful, or unreasonable
or it is based on an error of law or fact. State v. Gonzalez-Sandoval, 309 Kan. 113, 126-
27, 431 P.3d 850 (2018). The party alleging the abuse of discretion bears the burden of
proof. State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018).
K.S.A. 2017 Supp. 22-3716(c) limits the court's discretion in deciding how to
sanction a felony probation violator. Under the statute, a sentencing court should impose
a series of intermediate, graduated sanctions before ordering a probation violator to serve
his or her original sentence, unless certain exceptions apply. Here, the district court could
bypass the intermediate sanctions because Stieb committed a new crime while on
probation. K.S.A. 2017 Supp. 22-3716(c)(8)(A). Because the district court could revoke
Stieb's probation without first imposing intermediate sanctions, the issue is whether the
district court's actions were otherwise unreasonable.
Stieb asserts the district court abused its discretion when it ordered him to serve
his original sentence but gives no reason. A court abuses its discretion if no reasonable
person would have taken the court's position. State v. Gumfory, 281 Kan. 1168, 1170, 135
P.3d 1191 (2006). At the probation revocation hearing, Stieb stipulated that he committed
a new crime while on probation. He also violated many other conditions of probation
including failing to report, using drugs, and failing to complete his required treatment
program. Stieb has failed to show that the district court abused its discretion by revoking
his probation and ordering him to serve his original sentence.
Affirmed.
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