State v. Black ( 2020 )

NOT DESIGNATED FOR PUBLICATION
Nos. 122,403
122,404
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
EUGENE VANN BLACK,
Appellant.
MEMORANDUM OPINION
Appeal from Barton District Court; CAREY L. HIPP, judge. Opinion filed September 4, 2020.
Affirmed.
Submitted by the parties for summary disposition under K.S.A. 2019 Supp. 21-6820(g) and (h).
Before GREEN, P.J., ATCHESON and BRUNS, JJ.
PER CURIAM: Eugene Vann Black appeals from the district court's decision to
revoke his probation and order him to serve his underlying prison sentences in two
criminal cases. In this consolidated appeal, Black contends that the district court abused
its discretion by revoking his probation in both cases and in imposing his underlying
sentences. Upon docketing his appeal with this court, Black moved for summary
disposition under Supreme Court Rule 7.041A (2020 Kan S. Ct. R. 47). In response, the
State agreed that summary disposition was appropriate. As a result, we granted Black's
motion for summary disposition. Based on our review of the record, we do not find that
the district court erred in revoking Black's probation in these cases. Thus, we affirm the
district court's decision.
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FACTS
On September 28, 2017, Black pled no contest to one count of possession of
methamphetamine in Case No. 17CR302. The district court granted Black's request for a
dispositional departure and sentenced Black to 34 months in prison suspended to
probation for 12 months. About six months later, on April 19, 2018, Black pled guilty to
one count of possession of methamphetamine with intent to distribute within 1000 feet of
school property in Case No. 18CR178. The district court again granted Black's request
for a dispositional departure and sentenced Black to 40 months in prison suspended to
probation for 18 months.
At a probation hearing held on January 28, 2019, the district court found that
Black had violated the terms of his probation in case No. 17CR302. As a result, the
district court ordered Black to serve a 120-day intermediate sanction and reinstated his
probation. At a second revocation hearing held on October 25, 2019, Black stipulated that
he had violated the terms of his probation in both case No. 17 CR302 and case No.
18CR178 by failing to meet with his intensive supervision officer (ISO) and for testing
positive for methamphetamine. Although Black denied knowingly ingesting
methamphetamine, he stipulated to the positive test result. At the conclusion of the
hearing, the district court revoked Black's probation and imposed his underlying
sentences.
Thereafter, Black timely filed a notice of appeal.
ANALYSIS
On appeal, Black contends that the district court abused its discretion by requiring
him to serve his underlying sentences following the revocation of his probation. Judicial
discretion is abused only if (1) no reasonable person would take the view adopted by the
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district court; (2) it is based on an error of law; or (3) it is based on an error of fact. State
v. Schaal, 305 Kan. 445, 449, 383 P.3d 1284 (2016). The party asserting the district court
abused its discretion—in this case Black—bears the burden of showing such abuse of
discretion. State v. Smith-Parker, 301 Kan. 132, 161, 340 P.3d 485 (2014).
K.S.A. 2019 Supp. 22-3716 governs the procedure for revoking a defendant's
probation. Once a district court has established by a preponderance of the evidence that a
defendant has violated the conditions of his or her probation, the decision to revoke
probation rests in the sound discretion of the district court. See State v. Skolaut, 286 Kan.
219, 227-28, 182 P.3d 1231 (2008); State v. Reeves, 54 Kan. App. 2d 644, 648, 403 P.3d
655 (2017). A district court's decision to revoke probation typically involves two distinct
steps: (1) a retrospective factual question whether the probationer has violated a
condition of probation; and (2) a discretionary determination by the sentencing authority
whether violation of a condition warrants revocation of probation. State v. Horton, 308
Kan. 757, 761, 423 P.3d 548 (2018).
Here, Black stipulated to violating the terms of his probation. So we turn to the
second step. K.S.A. 2019 Supp. 22-3716(c)(7)(B) permits the district court to revoke
probation if the probation was originally granted as the result of a dispositional departure.
In Black's underlying criminal cases, the district court granted him a dispositional
departure to probation although he was facing presumptive prison sentences. Although
the district court granted Black an intermediate sanction and reinstated the terms of
probation after his initial violation, it was not required to do so since Black's crimes were
committed after July 1, 2017. See State v. Coleman, 311 Kan. 332, 337, 460 P.3d 828(2020).
We find nothing in the record to show that the district court abused its discretion
in revoking Black's probation or in imposing his underlying sentences. Moreover, Black
fails to provide any reason in support of his claim that the district court abused its
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discretion. Here, Black failed to comply with the terms of his probation even after his
probation was reinstated following his first violation.
In summary, we find the district court's decision to revoke Black's probation and
to require him to serve his underlying sentences to be reasonable. Likewise, we do not
find that the district court made an error of law or fact. Accordingly, we conclude that the
district court did not abuse its discretion, and we affirm its decision.
Affirmed.
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