State v. McHenry ( 2022 )

NOT DESIGNATED FOR PUBLICATION
Nos. 122,393
122,394
122,395
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DANIEL WAYNE MCHENRY,
Appellant.
MEMORANDUM OPINION
Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed July 22, 2022.
Affirmed.
Submitted by the parties for summary disposition under K.S.A. 2021 Supp. 21-6820(g) and (h).
Before ARNOLD-BURGER, C.J., SCHROEDER and WARNER, JJ.
PER CURIAM: Daniel Wayne McHenry appeals the district court's revocation of
his probation and imposition of the underlying sentences arising from three Saline
County cases: 15CR587 (Case 1), 17CR992 (Case 2), and 17CR1191 (Case 3), which we
consolidated for appeal. We granted McHenry's motion for summary disposition under
Supreme Court Rule 7.041A (2022 Kan. S. Ct. R. at 48). Based on the record, we find the
district court did not abuse its discretion and affirm.
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FACTUAL AND PROCEDURAL HISTORY
In August 2015, McHenry entered a no-contest plea in Case 1 to two counts of
distributing marijuana and one count of unlawful possession of methamphetamine.
McHenry then filed a motion for a dispositional departure to probation. The court granted
a dispositional departure and sentenced McHenry to 49 months in prison but released him
on probation for a term of 18 months. After serving 17 months of probation, McHenry
voluntarily extended his probation 12 months for violating his probation by using drugs.
While McHenry was on probation, the State charged him in two new cases—Case
2 and Case 3, in late 2017. Under a plea agreement in Case 2, McHenry pleaded no
contest to theft of a firearm and criminal possession of a firearm by a felon. Also under
the agreement, McHenry pleaded no contest in Case 3 to one count each of possession of
methamphetamine, driving without a license, and speeding. The State moved to revoke
McHenry's probation in Case 1 based on committing these new crimes.
In July 2018, the district court sentenced McHenry for Cases 2 and 3 and ruled on
the motion to revoke his probation in Case 1. Ultimately, the district court sentenced him
in the new cases to 14- and 20-month consecutive prison sentences, respectively, but
released McHenry to 18 months of probation. In Case 1, the district court established that
McHenry had served two 2-day jail sanctions and reinstated probation for 18 months.
The State moved to revoke probation in all three cases in February 2019, claiming
McHenry failed to report to his supervisor, inform his supervisor of his address, comply
with curfew, refrain from using drugs, and comply with treatment programs. McHenry
stipulated to the violations. Because McHenry had served another 2-day jail sanction,
bringing his total to three, the district court ordered McHenry serve a 180-day prison
sanction and extended his probation 12 months.
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Eight months after the court reinstated McHenry's probation, the State again
moved to revoke probation for multiple violations, including failure to report for drug
screening, remain drug and alcohol free, report to his supervisor, comply with treatment,
abide curfew, complete community service hours, and pay court costs. The district court
found McHenry had violated the terms of his probation and revoked McHenry's
probation in all three cases. Before sentencing for the violations, the district court
corrected an illegal sentence in Case 1 and revised his sentence to 15 months of prison.
The district court then ordered McHenry to serve a cumulative 49 months in prison on all
three cases.
ANALYSIS
On appeal, McHenry argues that the district court abused its discretion when it
ordered him to serve his underlying sentences after finding he violated his probation.
When we review the district court's decision to impose a sanction for a violation of
probation, the standard of review is an abuse of discretion. State v. Hurley, 303 Kan. 575,
580, 363 P.3d 1095 (2016). A district court abuses its discretion when a decision is
arbitrary, fanciful, or unreasonable, or the decision is based on an error of fact or law.
State v. Levy, 313 Kan. 232, 237, 485 P.3d 605 (2021).
Although the offenses occurred in 2015 and 2017, both K.S.A. 2015 Supp. 22-
3716(c)(1)(E) and K.S.A. 2017 Supp. 22-3716(c)(1)(E) apply the same progressive
sanctions for probation violations. Because the applicable statute depends on the date the
offenses occurred, the district court had to impose intermediate sanctions before it could
revoke probation. See State v. Coleman, 311 Kan. 332, 337, 460 P.3d 828 (2020). The
district court may revoke probation when the district court has already sanctioned the
defendant and finds that the defendant violated the terms of his probation again under
K.S.A. 2017 Supp. 22-3716(c)(1)(E).
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The district court did not abuse its discretion when it revoked McHenry's
probation. McHenry does not argue the district court based its decision on an error of fact
and McHenry concedes the district court did not make an error of law. The district court
properly applied the law when it imposed intermediate sanctions before revoking
McHenry's probation. McHenry served multiple two-day jail sanctions under K.S.A.
2017 Supp. 22-3716(b)(4). Following the jail sanctions, the district court properly
ordered a 180-day prison sanction in February 2019. K.S.A. 2017 Supp. 22-
3716(c)(1)(D). Because the district court imposed multiple intermediate sanctions, the
district court could revoke his probation under K.S.A. 2017 Supp. 22-3716(c)(1)(E).
Finally, the court did not make a decision that was arbitrary, fanciful, or
unreasonable. Because McHenry violated probation multiple times, including subsequent
criminal convictions while on probation, the district court's decision to revoke probation
and impose the underlying sentences was reasonable. We, therefore, affirm the district
court's revocation of McHenry's probation.
Affirmed.
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