State v. Zales ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,009
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DOMINIC P. ZALES,
Appellant.
MEMORANDUM OPINION
Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed September 2,
2022. Affirmed.
Kristen B. Patty, of Wichita, for appellant.
Kimberly A. Rodebaugh, senior assistant district attorney, Thomas R. Stanton, district attorney,
and Derek Schmidt, attorney general, for appellee.
Before GARDNER, P.J., MALONE and CLINE, JJ.
PER CURIAM: Dominic P. Zales claims the district court abused its discretion
when revoking his probation because the evidence did not support its finding that he
violated his probation conditions. We find no error in the district court's decision and
therefore affirm.
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Zales' unsuccessful probation
In October 2019, Zales received a dispositional departure to probation after he
pleaded guilty to four crimes: (1) distribution of heroin/certain stimulants, a severity
level 3 nonperson felony; (2) possession of paraphernalia with intent to
manufacture/plant/cultivate a controlled substance, a severity level 5 nonperson felony;
(3) criminal possession of a firearm by a felon, a severity level 8 nonperson felony; and
(4) use/possess with intent to use drug paraphernalia, a class B misdemeanor.
About eight months later, Zales stipulated to seven violations of the conditions of
his probation, including: (1) engaging in illegal activity—giving a false alarm that led to
a building evacuation in November 2019; (2) testing positive for methamphetamines in
November and December 2019 and February 2020; and (3) failing to report. While
discussing what sanction to impose for these violations, Zales' counsel told the district
court that Zales had relapsed in his drug use but had since successfully completed
inpatient treatment. She said Zales was doing well in outpatient drug treatment, which
Zales confirmed.
The district court imposed a 30-day jail sanction, which it suspended for 60 days
as long as Zales committed no new violations and missed no treatment without a valid
excuse. The court reminded Zales that it could revoke his probation at any time, without
imposing graduated sanctions, given his criminal history.
Within 60 days, the State moved to revoke Zales' probation. Its first motion recited
that Zales failed to attend mental health appointments on July 6, 16, and 22, failed to
attend outpatient treatment on July 2, failed to contact his ISO on August 10 and 12, and
failed to provide documentation that he was required to quarantine. The State filed
several amended motions in the following months, adding additional violations:
committing domestic battery on August 16, 2020, continuing to miss mental health and
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drug treatment appointments, not contacting his ISO on other dates in July, August, and
September 2020, being unsuccessfully discharged from outpatient treatment on August
27, 2020, and testing positive for methamphetamines on February 8, 2021.
The district court found Zales violated his probation terms after an evidentiary
hearing. When pronouncing its ruling, the court summarized Zales' long criminal history
and reminded Zales it had granted him a departure in hopes that Zales would take
advantage of that opportunity to succeed. It reminded Zales of his prior probation
violations and opportunity to participate in drug treatment. It then found he had continued
to violate the terms of his probation by getting unsuccessfully discharged from outpatient
treatment, missing treatment appointments, and failing to report. It also found the State
proved Zales had committed domestic battery. The court revoked Zales' probation and
imposed his underlying sentence.
The district court did not abuse its discretion in revoking Zales' probation.
On appeal, Zales challenges the sufficiency of the evidence to support the district
court's findings that he violated his probation. He claims COVID-19 quarantines affected
his ability to attend outpatient treatment and therapy appointments, and he noted his wife
recanted her domestic abuse allegations.
We find there was sufficient evidence to support the district court's finding and it
did not abuse its discretion in revoking Zales' probation.
Applicable law and standard of review
A district court's decision to revoke an offender's probation consists of two steps:
(1) making a factual determination that the offender violated a condition of probation and
(2) making a discretionary determination on whether the violation warrants revoking the
offender's probation. State v. Lyon, 58 Kan. App. 2d 474, 478, 471 P.3d 716 (2020)
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(citing State v. Skolaut, 286 Kan. 219, 227, 182 P.3d 1231 [2008]). The probation
violation must be established by a preponderance of the evidence—which is established
when the evidence shows that a fact is more probably true than not true. Lyon, 58 Kan.
App. 2d at 478; State v. Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.3d 844 (2007). And
we review the district court's factual finding that a probation violation occurred for
substantial competent evidence. Lyon, 58 Kan. App. 2d at 478.
"'Substantial evidence is evidence which possesses both relevance and substance and
which furnishes a substantial basis of fact from which the issues can reasonably be
resolved. Stated another way, substantial evidence is such legal and relevant evidence as
a reasonable person might accept as being sufficient to support a conclusion. [Citations
omitted.]'" Inkelaar, 38 Kan. App. 2d at 315.
When reviewing the district court's factual findings, we cannot reweigh the evidence nor
reassess witness credibility. State v. Yazell, 311 Kan. 625, 627-28, 465 P.3d 1147 (2020);
see also State v. Penn, No. 123,553, 2022 WL 497316, at *3 (Kan. App. 2022)
(unpublished opinion) (stating rule in context of reviewing district court's factual finding
of probation violation for substantial competent evidence).
Once a probation violation is established, a district court's decision to revoke an
offender's probation and impose the underlying prison sentence is discretionary, unless
otherwise limited by statute. State v. Tafolla, 315 Kan. 324, 328, 508 P.3d 351 (2022);
Lyon, 58 Kan. App. 2d at 478. We review the propriety of the sanction the district court
imposed for the probation violation for an abuse of discretion. A district court abuses its
discretion if its decision is (1) arbitrary, fanciful, or unreasonable; (2) based on an error
of law; or (3) based on an error of fact. Tafolla, 315 Kan. at 328. Unreasonable means
that "no reasonable person would have taken the view adopted by the trial court." State v.
Jones, 306 Kan. 948, Syl. ¶ 7, 398 P.3d 856 (2017). Zales bears the burden of showing an
abuse of discretion. Tafolla, 315 Kan. at 328.
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Sufficient evidence supports the district court's findings.
Zales challenges the findings of violation based on his non-attendance at treatment
by arguing COVID-19 quarantines affected his ability to attend outpatient treatment and
therapy appointments. He relies on his testimony at the hearing where he stated he was
quarantined in April, June, July, and August.
Zales asks us to reweigh the evidence, which we cannot do. Not only did Zales'
ISO provide conflicting testimony about Zales' claimed quarantines, but even Zales
provides no excuse for missing appointments in September 2020. And even if the district
court had accepted Zales' testimony over his ISO's, Zales' drug and alcohol counselor
testified he could have attended his appointments by telephone or Zoom.
Zales similarly asks us to reweigh the testimony about the domestic battery
incident. The district court found Zales' wife's recanting of her allegations unbelievable,
based on the testimony of Zales' wife, her mother, and the police officer who responded
to the domestic battery call. It made a credibility determination based on its observation
of the testimony of all the witnesses, which we cannot overturn. See State v. Brown, No.
112,454, 2015 WL 9457875, at *1-2 (Kan. App. 2015) (unpublished opinion) (finding
police officer's testimony at probation revocation hearing detailing victim's original
report that defendant punched her, which district court credited over victim's recantation
at the hearing, sufficient to support district court's finding that defendant punched victim
and violated his probation by committing battery); State v. Larraga, No. 112,261, 2015
WL 7433531, at *1-2 (Kan. App. 2015) (unpublished opinion) (presenting similar facts
and affirming based on "district court's unreviewable determination that [victim's]
recantation was not credible").
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And, last, Zales did not challenge the sufficiency of the evidence of the final
probation violation—his failure to report to his ISO. His ISO testified that Zales failed to
contact him on August 10, 2020, and August 12, 2020.
We find substantial competent evidence supports the district court's probation
violation findings. Any of these grounds, alone, could establish the probation violation
necessary to revoke Zales' probation. See State v. Grossman, 45 Kan. App. 2d 420, 428,
248 P.3d 776 (2011) (indicating district court has not abused its discretion when it relied
on multiple probation violations to revoke an offender's probation and one ground is
invalid, so long as alternative ground is valid); State v. McGregor, No. 123,340, 2022
WL 628692, at *8 (Kan. App. 2022) (unpublished opinion) (citing Grossman, 45 Kan.
App. 2d at 428, for the proposition: "[O]nly one valid probation violation is needed to
uphold the trial court's revocation of an offender's probation."), petition for review filed
April 4, 2022.
Zales admits the district court had the legal authority to revoke his probation since
it was originally granted as the result of a dispositional departure. See K.S.A. 2021 Supp.
22-3716(c)(7)(B). And we do not find the court acted unreasonably in doing so.
Affirmed.
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