State v. Markley ( 2021 )

NOT DESIGNATED FOR PUBLICATION
Nos. 123,098
123,099
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
MATTHEW AARON MARKLEY,
Appellant.
MEMORANDUM OPINION
Appeal from Ellis District Court; GLENN R. BRAUN, judge. Opinion filed December 10, 2021.
Affirmed.
Submitted by the parties for summary disposition pursuant to K.S.A. 2020 Supp. 21-6820(g) and
(h).
Before BRUNS, P.J., GREEN and ISHERWOOD, JJ.
PER CURIAM: Matthew Markley appeals the district court's decision to revoke his
probation and impose his underlying prison sentences. We granted Markley's motion for
summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2021 Kan.
S. Ct. R. 48). The State did not submit a response to the motion. Based on our review of
the record, we find that the district court properly exercised its discretion when it
imposed Markley's original sentences. Thus, we affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
On December 7, 2017, the Ellis County Attorney charged Markley with one count
of possession of methamphetamine while in possession of a firearm. The State later
amended the complaint to simply charge him with the drug offense.
While resolution of his drug case was pending, Markley got embroiled in a
domestic dispute with his former partner during which he threatened her through a series
of text messages and threw a large firework at her door while there were children inside.
As a result, the Ellis County Attorney charged him with a single count each of aggravated
arson, criminal threat, and violation of a protective order.
Markley pleaded no contest to the drug offense and was granted probation for 18
months with an underlying prison term of 11 months. Markley likewise opted to enter
pleas in his other three pending cases. In one case, he pleaded no contest to aggravated
arson and a misdemeanor count of endangering a child. The court sentenced him to 26
months in prison for the former offense and 1 year in jail for the latter. In the second case,
he entered an Alford plea to two misdemeanor counts of possession of marijuana and the
court imposed a sentence of two consecutive six-month jail terms for those offenses. The
judge ordered that the sentences be served consecutive to those imposed in Markley's
other cases. Finally, Markley entered a no-contest plea to violating a protective order and
was sentenced to one year in jail with directions that it be served consecutive to all his
other sentences. The court suspended each sentence and placed Markley on probation for
24 months after finding that the crimes stemmed from Markley's substance abuse and a
treatment program was available in the community. The court ordered his probation to
run consecutive to the probation term imposed in his drug possession case. The
conditions of his probation, in part, required him to abstain from drugs and alcohol, abide
by a curfew, and if his intensive supervision officer ordered him to complete a batterer's
intervention program, he needed to ensure he completed the program. The court informed
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Markley that it had imposed the longest possible prison sentence, while still affording
him the opportunity for probation. In conclusion, the court stated, "I want to know the
instant that there's any violation in your case."
Eight months later, the State moved to revoke Markley's probation. It alleged that
Markley admitted to using alcohol and methamphetamine and was unsuccessfully
discharged from the batterer's intervention program. The court conducted a hearing and
following Markley's stipulations to the allegations, found him in violation of his
probation.
Markley informed the court that he recently started a computer business and if the
court ordered him to prison, the business would dissolve and render him unable to fulfill
his child support obligation. Accordingly, he requested a low-level intermediate sanction
for his violations, such as a two- or three-day quick dip. In an effort to strike a balance
between its desire to impose a meaningful sanction and respecting Markley's apparent
effort to improve his lifestyle, the court settled on a 30-day jail sanction dispersed over
the immediately following 15 weekends. Additionally, the court directed Markley to
attend Narcotics Anonymous twice a week, apply for the drug court program, and reenter
a batterer's intervention program.
A few short months later, Markley engaged in a high-speed vehicle chase with
another individual and picked up a new charge of aggravated assault with a deadly
weapon as a result thereof. The new charge, coupled with his failure to attend outpatient
treatment and a positive UA for methamphetamine, prompted the State to file a motion to
revoke Markley's probation.
The district court conducted a bifurcated proceeding to cover the preliminary
hearing for Markley's new offense and address his probation violations. Following receipt
of testimony from law enforcement officers, the other individuals involved in the car
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chase, and Markley personally, the court found by a preponderance of the evidence that
Markley knowingly placed his victims in reasonable apprehension of bodily harm and his
use of a vehicle qualified as a deadly weapon.
The court also found that Markley violated his probation. In support of its
conclusion, the court pointed to its ruling on the new aggravated assault charge and
highlighted that Markley also admitted to testing positive for methamphetamine and
failing to attend outpatient treatment. The court also observed that while not an allegation
contained within the State's motion, during his testimony Markley also essentially
admitted to a curfew violation.
The State sought imposition of Markley's underlying prison term given that this
marked his second series of violations and he had received a sanction previously.
Markley requested reinstatement of his probation with an opportunity to attend inpatient
substance abuse treatment. And, to the extent the court was inclined to order him to serve
his prison term, he requested modification of that sentence to consist only of the term
imposed for his drug offense.
The district court explained that it had afforded him several opportunities, but he
chose to commit new crimes and demonstrated he was a danger to the community. The
court revoked his probation and ordered him to serve the sentences imposed in each of
his cases apart from that entered for violating a protective order.
Markley timely appeals the revocation of probation in only two of his cases, that
involving possession of methamphetamine and that in which he pleaded to aggravated
arson and endangering a child. The cases were consolidated for purposes of this appeal.
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ANALYSIS
On appeal, Markley argues the district court abused its discretion by ordering him
to serve his original sentences rather than reinstate his probation. We review district court
decisions to revoke probation for an abuse of discretion. State v. Coleman, 311 Kan. 332,
334, 460 P.3d 828 (2020). "A trial court abuses its discretion when it makes a decision
that is arbitrary, fanciful, or unreasonable; is based on an error of law; or is based on an
error of fact. [Citation omitted.]" State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931(2018). As the party alleging an abuse of discretion, Markley bears the burden of proof
on appeal. State v. Rojas-Marceleno, 295 Kan. 525, 531, 285 P.3d 361 (2012).
A district court may revoke probation when it is established by a preponderance of
the evidence that the defendant violated the conditions of their probation. State v. Lloyd,
52 Kan. App. 2d 780, 782, 375 P.3d 1013 (2016) (citing State v. Gumfory, 281 Kan.
1168, 1170, 135 P.3d 1191 [2006]). It is undisputed that Markley admitted to three
probation violations: using methamphetamine, violating his curfew, and not attending
outpatient treatment. Additionally, the district court found that Markley violated
probation by committing a new crime.
Once a district court finds a probation violation, it has the discretion to revoke
probation and impose the defendant's original sentence if the defendant committed a new
crime while on probation. K.S.A. 2017 Supp. 22-3716(c)(8)(A); Lloyd, 52 Kan. App. 2d
at 782-85. Thus, the district court's decision here did not constitute an error because it
found by a preponderance of the evidence that Markley committed aggravated assault
with a deadly weapon. See State v. Scott, No. 119,928, 2019 WL 1969553, at *1-2 (Kan.
App. 2019) (unpublished opinion) (affirming a probation revocation based on K.S.A.
2018 Supp. 22-3716(c)(8)(A) when the district court found by a preponderance of
evidence that the defendant committed two new crimes).
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The district court's decision to revoke probation under these circumstances is also
properly classified as reasonable. Although the district court could have reached an
alternate conclusion, it cannot be said that no reasonable person would have imposed
Markley's prison sentences in this case. Markley continually used drugs throughout his
probation and on two separate occasions, once while on probation, received convictions
for two dangerous criminal activities that placed others in harm's way: throwing an
explosive at a residence with children inside and closely following a vehicle at excessive
speeds. Moreover, Markley previously had a revocation hearing and served a 30-day jail
sanction. The district court, therefore, did not abuse its discretion when it revoked
Markley's probation following new violations and ordered him to serve his underlying
prison sentences.
Affirmed.
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