State v. Acevedo ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,658
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
MANUEL DAVID ACEVEDO,
Appellant.
MEMORANDUM OPINION
Appeal from Finney District Court; WENDEL W. WURST, judge. Opinion filed July 29, 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: Manuel David Acevedo appeals the district court's decision to
revoke his probation. We granted Acevedo's motion for summary disposition under
Supreme Court Rule 7.041A (2022 Kan. S. Ct. R. at 48). The State has not responded.
Even so, we affirm the district court's ruling.
FACTUAL AND PROCEDURAL HISTORY
For conduct that occurred on October 23, 2019, the State charged Acevedo with
one count each of possession of methamphetamine with intent to distribute, a severity
level 2 drug felony; interference with a law enforcement officer, a severity level 9
nonperson felony; and driving while license suspended, a class A nonperson
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misdemeanor. Under a plea agreement, Acevedo pled guilty to the possession of
methamphetamine with intent to distribute charge, and the other two charges were
dismissed. Acevedo had a criminal history score of E, and the district court imposed a
prison sentence of 111 months. But the court granted Acevedo a dispositional departure
and suspended the prison sentence in favor of 36 months of probation.
Within seven months of being placed on probation, Acevedo failed to report as
directed eight times and failed a urinalysis test. He also stipulated to violating his
probation by using illegal drugs three times. As a result, the district court revoked his
probation and imposed a modified prison sentence of 60 months.
ANALYSIS
Acevedo appeals the revocation of his probation. In his motion for summary
disposition, Acevedo argues that the district court abused its discretion by ordering him to
serve the modified prison sentence rather than reinstating his probation. But Acevedo
recognizes that upon violation of his probation, the district court had discretion to revoke
probation and order him to serve the sentence imposed, or any lesser sentence.
This court reviews a decision to revoke probation under an abuse of discretion
standard. State v. Coleman, 311 Kan. 332, 334, 460 P.3d 828 (2020). Abuse of discretion
is satisfied if the action "is arbitrary, fanciful, or unreasonable; is based on an error of
law; or is based on an error of fact." State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931(2018).
To find that the district court committed an error of fact we must find that
substantial competent evidence does not support a factual finding on which a prerequisite
conclusion of law or the exercise of discretion is based. Davis, 312 Kan. at 276. Acevedo
does not direct us to any factual finding of the district court that he claims was not
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supported by substantial competent evidence. So he does not claim a factual error in the
district court's decision.
Although a district court may revoke probation after finding a violation, an
intermediate sanction is required before revocation, unless an exception applies. State v.
Dooley, 308 Kan. 641, 647-48, 423 P.3d 469 (2018); K.S.A. 2019 Supp. 22-3716(c)(1).
One exception is if probation "was originally granted as the result of a dispositional
departure." K.S.A. 2019 Supp. 22-3716(c)(7)(B). At sentencing, Acevedo was granted a
dispositional departure. Thus, the district court had legal authority to revoke his probation
without any intermediate sanctions in this situation, so there was no legal error.
Finally, because Acevedo does not dispute that the district court had discretion to
revoke probation, he bears the burden of showing that no reasonable person would have
taken the view adopted by the district court. See State v. Thomas, 307 Kan. 733, 739, 415
P.3d 430 (2018).
Here, the record does not support Acevedo's argument that the district court's
decision to revoke his probation was arbitrary, fanciful, or unreasonable. Acevedo is a
registered narcotics trafficker with a history of drug addiction and unsuccessful
probation. He was on probation for a 2015 felony drug case when the State charged him
with felony possession in the current case. The State filed three motions to revoke
probation in the 2015 case, and Acevedo served two "quick-dip" jail sanctions. Acevedo
was also on felony bond in another criminal case from 2019 when he committed the
current possession charge, and he has a new possession charge pending in a 2021 case.
The sentence in the current case was presumptive prison, but the district court, once
again, gave him a chance at probation. Acevedo violated his probation 10 times by failing
to report, failing a urinalysis, and admitting to three instances of drug use.
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Under these facts, Acevedo fails to show that no reasonable person could have
taken the view adopted by the district court. Thus, we find the district court did not abuse
its discretion by revoking Acevedo's probation and imposing a modified sentence.
Affirmed.
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