State v. Ridge ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 122,408
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
SYLVESTER S. RIDGE,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; ERIC WILLIAMS, judge. Opinion filed September 4, 2020.
Affirmed.
Submitted by the parties for summary disposition pursuant to K.S.A. 2019 Supp. 21-6820(g) and
(h).
Before GREEN, P.J., ATCHESON and BRUNS, JJ.
PER CURIAM: Defendant Sylvester Ridge contends the Sedgwick County District
Court overstepped its broad judicial discretion when it revoked his probation and required
him to serve prison sentences for aggravated burglary and criminal threat, both of which
are felonies. Ridge never adjusted to probation and could not comply with the conditions
required of him. Under the circumstances, we find no abuse of discretion and affirm the
district court.
The State charged Ridge with one count of aggravated burglary, one count of
criminal threat, and one count of misdemeanor battery arising from an incident in early
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October 2018, when he kicked in the front door of his sister's apartment, threatened to kill
everyone there, and then violently fought with her boyfriend.
Ridge entered guilty pleas to both felony charges in early March 2019 as part of an
agreement with the State calling for a joint sentencing recommendation of the low
guidelines sentence on each conviction with concurrent sentences and a downward
dispositional departure to probation. The reasons cited in support of the agreement
included Ridge's ongoing mental health and substance abuse problems, resources in the
community to address those needs, and the desire of the victims that Ridge be granted
probation and an opportunity for rehabilitation. Upon Ridge's pleas to the felony charges,
the State also dismissed the misdemeanor battery.
Consistent with the plea agreement, the district court sentenced Ridge in mid-April
to a prison term of 144 months on the aggravated burglary conviction to be served
concurrent with a term of 5 months on the criminal threat conviction with postrelease
supervision for 36 months. The district court granted Ridge's request for a dispositional
departure to probation and set the period for 36 months.
Ridge did not fare well on probation. In July 2019, he admitted to violations of his
probation conditions in May—he tested positive for alcohol consumption and failed to
attend substance abuse treatment. Those failures were of particular concern, since Ridge
had attributed his criminal behavior in no small part to his unchecked consumption of
drugs and alcohol. The district court extended the term of Ridge's probation and ordered
that he enter the Residential Center program, a comparatively restrictive nonprison
placement. In November, Ridge again appeared in district court and admitted a probation
violation for consuming alcohol and having a breath test positive for alcohol. The district
court imposed a 48-hour jail sanction with credit for the 3 weeks Ridge had spent in jail
on the warrant for the probation violation and ordered Ridge returned to the Residential
Center program.
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Ridge was back in district court just before Christmas on a probation violation
warrant for testing positive for cocaine, marijuana, and benzodiazepines in late
November and for having a positive breath test for alcohol in early December. Ridge
again admitted the violations. Ridge's probation officer recommended a 60-day jail
sanction followed by placement in a restricted environment with monitoring through a
global positioning system device. The State opposed any further accommodation of
Ridge on probation and argued that he should be required to serve his prison sentences.
Both personally and through his lawyer, Ridge asked for another chance on probation.
Ridge acknowledged struggling with his addiction and letting down his probation officer
and family members who had been trying to help him. He pleaded for the opportunity to
make up for those failures.
The district court alluded to Ridge's criminal history that includes convictions for
three felonies before this case and outlined briefly the rocky path of Ridge's current
probation. The district court concluded those circumstances demonstrated that Ridge was
not amenable to probation and ordered that he serve the controlling prison sentence of
144 months.
After filing his notice of appeal, Ridge requested this case be handled by summary
disposition under Kansas Supreme Court Rule 7.041A (2020 Kan. S. Ct. R. 47). We have
granted that request. Ridge contends the district court abused its discretion in refusing to
continue him on probation and sending him to prison.
Probation is an act of judicial leniency afforded a defendant as a privilege rather
than a right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). A district court's
decision to revoke probation usually involves two steps: (1) a factual determination that
the probationer has violated a condition of probation; and (2) a discretionary
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determination as to the appropriate disposition in light of the proved violations. State v.
Skolaut, 286 Kan. 219, Syl. ¶ 4, 182 P.3d 1231 (2008).
A defendant's admission of charged violations satisfies the first step. Here, Ridge
so stipulated at the December revocation hearing, obviating the State's duty to prove the
violations by a preponderance of the evidence. See State v. Gumfory, 281 Kan. 1168,
1170, 135 P.3d 1191 (2006); State v. Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.3d 844(2007), rev. denied 286 Kan. 1183 (2008). After a violation has been established, the
decision to reinstate probation or to revoke and incarcerate the probationer rests within
the sound discretion of the district court. See Skolaut, 286 Kan. at 227. Judicial discretion
has been abused if a decision is arbitrary, fanciful, or unreasonable or rests on a
substantive error of law or a material mistake of fact. State v. Cameron, 300 Kan. 384,
391, 329 P.3d 1158, cert. denied 135 S. Ct. 728 (2014). Ridge carries the burden of
showing that the district court abused its discretion. See State v. Stafford, 296 Kan. 25,
45, 290 P.3d 562 (2012).
Here, the district court plainly understood the factual circumstances consistent
with Ridge's admissions of the last probation violations. Those circumstances show
Ridge tested positive for three illegal drugs, and for purposes of a probation revocation
hearing that is sufficient to establish the commission of a new crime. A district court may
revoke the probation of a defendant who has been afforded a downward durational
departure from presumptive incarceration to probation for any violation of his or her
conditions of probation. K.S.A. 2019 Supp. 22-3716(c)(7)(B). Likewise, a district court
may revoke probation if the defendant commits a new felony or misdemeanor. K.S.A.
2019 Supp. 22-3716(c)(7)(C). The district court, therefore, acted within the governing
statutory rules.
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We are, thus, left to ask whether the district court's decision was so far afield that
no other district court reasonably would have done the same in these circumstances. We
are comfortable concluding that is not true.
Ridge had a serious substance abuse problem that was not amenable to
community-based treatment options, as evidenced by his repeated probation violations
during the six months after he was sentenced. Sometimes, a defendant may be able to
reckon with those demons only in a prison setting. We have upheld probation revocations
in those situations. See State v. Bergman, No. 120,423, 2020 WL 1074718, at *1 (Kan.
App. 2020) (unpublished opinion); State v. Zwickl, No. 115,959, 2017 WL 2709799, at
*3 (Kan. App. 2017) (unpublished opinion). This is another example.
Affirmed.
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