State v. Lund ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,443
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
HEATHER LOUISE LUND,
Appellant.
MEMORANDUM OPINION
Appeal from Finney District Court; CHRISTOPHER D. SANDERS, judge. Opinion filed December
17, 2021. Affirmed.
Submitted by the parties for summary disposition pursuant to K.S.A. 2020 Supp. 21-6820(g) and
(h).
Before POWELL, P.J., ATCHESON, J., and RICHARD B. WALKER, S.J.
PER CURIAM: Defendant Heather Louise Lund appeals the decision of the Finney
County District Court to revoke her probation and impose her underlying prison sentence.
We granted Lund's motion for summary disposition under Supreme Court Rule 7.041A
(2021 Kan. S. Ct. R. 48) with which the State agreed. Lund asserts the district court
abused its discretion by revoking her probation. We find no error and affirm the district
court.
FACTUAL AND PROCEDURAL HISTORY
In May 2019, Lund pleaded no contest to one count of possession of
methamphetamine with intent to distribute, a severity level 3 drug felony. Two months
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later, the district court sentenced Lund to 68 months in prison, granted her motion for a
downward dispositional departure to probation, and placed her on probation for 36
months to be supervised through Community Corrections.
In November 2019, Lund served a three-day jail sanction issued by Community
Corrections for continued drug use. In March 2020, Lund's intensive supervision officer
(ISO) filed an affidavit alleging Lund failed to report twice, stayed out past curfew,
associated with persons of disreputable or harmful character, and used methamphetamine
numerous times. Based on those allegations, the State filed a motion to revoke Lund's
probation.
In September 2020, the district court held an adjudication hearing on the State's
motion. During the hearing, multiple ISOs testified about the allegations contained in the
March 2020 warrant. After the testimony, the district court found the State had met its
burden to establish 9 of the 11 allegations contained in the warrant and found that Lund
violated her probation.
In November 2020, the district court held a disposition hearing. During this
hearing, the district court heard testimony from an ISO and Lund. After this testimony,
the State requested the district court revoke Lund's probation, relying on the probation
violations, as well as that probation was originally granted as the result of a dispositional
departure. In response, Lund argued the district court should reinstate her probation.
Ultimately, the district court revoked Lund's probation and imposed her underlying 68-
month prison sentence. Lund timely filed a notice of appeal.
ANALYSIS
On appeal, Lund maintains the district court abused its discretion by revoking her
probation and ordering her to serve her underlying prison sentence. We review a district
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court's decision to revoke probation for an abuse of discretion. State v. Coleman, 311
Kan. 332, 334, 460 P.3d 828 (2020). A judicial action constitutes an abuse of discretion if
(1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is
based on a material mistake of fact. State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931(2018). Lund bears the burden of showing an abuse of discretion. See State v. Thomas,
307 Kan. 733, 739, 415 P.3d 430 (2018).
While a district court ordinarily must impose an intermediate sanction before
revoking probation, there are statutory exceptions permitting immediate revocation. See
K.S.A. 2020 Supp. 22-3716(c)(1), (c)(7). A district court may revoke a defendant's
probation without previously imposing a sanction if "the probation, assignment to a
community correctional services program . . . was originally granted as the result of a
dispositional departure granted by the sentencing court pursuant to K.S.A. 21-6815, and
amendments thereto." K.S.A. 2020 Supp. 22-3716(c)(7)(B).
Lund's ISO alleged she violated her probation in numerous ways in the March
2020 affidavit. Based on the evidence presented during the September 2020 hearing, the
district court found that Lund violated her probation. On appeal, Lund does not dispute
that determination.
Once a probation violation has been proved and a statutory exception to the
requirement for intermediate sanctions applies, the district court has the discretion to
continue the probation or to revoke and require the defendant to serve the underlying
prison sentence. See State v. Brown, 51 Kan. App. 2d 876, 879-80, 357 P.3d 296 (2015).
Lund argues the district court abused its discretion when it revoked her probation
and ordered her to serve her underlying prison sentence. But because the district court
originally granted probation as the result of a dispositional departure, the district court
had the authority to order Lund to serve her underlying prison sentence. The record
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shows Lund had continuing and severe substance abuse problems that she repeatedly
failed to address successfully while on probation. The district court concluded Lund
required the stark reality of imprisonment to confront those problems in a focused and
serious way. On appeal, Lund does not point to any errors of law or mistakes of fact in
the district court's decision. And we readily conclude other district courts would have
reached the same conclusion in comparable circumstances. We, therefore, find no abuse
of judicial discretion.
Affirmed.
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