State v. McMiller ( 2020 )

NOT DESIGNATED FOR PUBLICATION
Nos. 121,830
121,831
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JOSEPH T. MCMILLER,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed
December 18, 2020. Affirmed.
Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before HILL, P.J., BRUNS and SCHROEDER, JJ.
PER CURIAM: Joseph T. McMiller asks us in this consolidated appeal to reverse
the district court's order revoking his probation in two felony cases. He claims an abuse
of discretion. Our review of the record reveals that after four prior revocations of his
probation, the court decided to order McMiller to serve his prison sentences. The
circumstances of these cases show no abuse of discretion by the court. Thus, we affirm.
1
After reaching a plea agreement with the State, McMiller pleaded guilty in case
No. 17-CR-3201 to possession of methamphetamine, felony theft, and misdemeanor
possession of marijuana. In case No. 18-CR-0615, McMiller pleaded guilty to felony
fleeing or attempting to elude an officer and felony theft. In exchange for his guilty pleas,
the State agreed to dismiss all remaining charges and recommend to the court that it
impose a dispositional departure sentence to probation.
The court sentenced McMiller to 42 months' imprisonment in case No. 17-CR-
3201 and 15 months' imprisonment in case No. 18-CR-0615. The sentences are
consecutive. The court granted McMiller's request for a dispositional departure and
placed him on probation for 12 months. As a condition of the probation, the court ordered
McMiller to resolve an outstanding warrant in an Oklahoma case. The district court also
ordered McMiller to begin outpatient drug and alcohol treatment.
A series of motions to revoke McMiller's probation followed. We offer details of
his probation history to show the efforts made by the court to keep McMiller on
probation and out of prison.
When he tested positive for methamphetamine and marijuana, McMiller waived
his right to a hearing and accepted a 48-hour jail sanction. After that, when he again
tested positive for methamphetamine and alcohol, he waived his right to a hearing and
accepted another 48-hour jail sanction.
After this second positive test, the court modified the conditions of McMiller's
probation and ordered him to successfully enter and complete the Community
Corrections Residential Program when ordered to do so by his supervising officer.
McMiller again waived his right to a hearing and agreed to a 72-hour jail sanction after
he violated his probation by possessing or consuming drugs or alcohol.
2
Next, the court issued a warrant for his arrest after the State alleged six more
probation violations. The State claimed McMiller was not in his place of assignment four
times, he failed to complete drug and alcohol treatment, and failed to resolve his
outstanding warrant in Oklahoma.
The court held an August 7, 2019 hearing on the State's allegations. At the
hearing, McMiller waived his right to an evidentiary hearing and admitted the allegations.
The court explained that a fourth quick dip jail sanction was recommended and approved
by the district court, but McMiller refused to agree to the sanction because he wanted to
return to a sober living facility instead of the Community Corrections Residential facility.
While McMiller was in custody, Oklahoma officials placed a criminal hold on him, and
the district court learned that McMiller was no longer eligible for the Community
Corrections Residential Program because of the out-of-state hold. Community
Corrections then recommended that McMiller "resolve his obligations in Oklahoma then
return to Sedgwick County to be placed on EMD for a minimum of 30 days and complete
the Residential Program with a twelve-month extension of probation."
At this point, the State asked the court to revoke McMiller's probation and order
him to serve his prison sentence. However, McMiller disagreed with the State and gave
further explanations for the alleged violations, including that Community Corrections
would not let him go to Oklahoma to resolve that issue. The court then scheduled an
August 14, 2019 dispositional hearing to address the remaining issues.
When the court reviewed its options at the dispositional hearing, the court pointed
out that a fourth quick dip sanction was not possible since Oklahoma officials had placed
a hold on McMiller. The court then noted that it had granted dispositional departures in
both cases. At this point, the court decided McMiller was exploiting the program rules by
not being in his place of assignment several times. With that, the court revoked
McMiller's probation and imposed the prison sentences in both cases.
3
In this appeal, McMiller presents two arguments. First, he contends in both cases
that the court abused its discretion when it revoked his probation. Next, he argues the
court failed to consider his personal circumstances, such as his great need for drug
treatment and the significant progress he made while on probation when it decided to
send him to prison. We will address those issues in that order.
The law is well established that after evidence of a probation violation is
presented, the decision to revoke the probation is reviewed for an abuse of discretion. See
State v. Skolaut, 286 Kan. 219, 227-28, 182 P.3d 1231 (2008). A judicial action
constitutes an abuse of discretion if:
• It is arbitrary, fanciful, or unreasonable;
• it is based on an error of law; or
• it is based on an error of fact.
State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018).
McMiller has the burden to show an abuse of discretion. See State v. Thomas, 307
Kan. 733, 739, 415 P.3d 430 (2018). McMiller does not argue that the district court's
decision was based on an error of law or fact; he only argues that the decision to revoke
his probation was unreasonable.
McMiller argues that the district court was mistaken when it concluded that the
detainer from Oklahoma somehow tied the court's hands and made probation
unworkable. While it is true the district court was concerned with the time McMiller
would have to spend in Oklahoma, its concerns surrounding the outstanding Oklahoma
case are reasonable. At the hearing, the court learned that the charges in Oklahoma were
serious felonies. The State advised the court that the charges included: felony possession
of a firearm by a felon; felony falsely impersonating another to create liability; felony
unauthorized use of a vehicle; felony introduction of contraband, weapons, drugs into a
penal institution; and other charges.
4
But we note that the court's concerns about the Oklahoma case were only part of
the reasons why it revoked McMiller's probation. He also had four out-of-place
assignment violations. The court was not satisfied with McMiller's explanation about
why he was over three hours late on one occasion.
Frankly, with this record, McMiller has failed to show an abuse of discretion. We
cannot say that no reasonable person would rule as the judge did here.
Turning to the second argument, we disagree with McMiller's claim that the court
did not consider his personal circumstances when it revoked his probation in both cases.
Three points explain our holding on this contention.
First, the court considered McMiller's individual circumstances. When making its
decision, the court stated the violations it thought were the most serious. Specifically, that
McMiller was already granted three quick dip sanctions, he was over three hours late on
one of his out-of-place assignment violations, the unspecified amount of time he would
have to spend in Oklahoma for those serious felony charges, and his probation resulted
from a dispositional departure involving two separate felony cases.
Second, the court gave McMiller several opportunities to continue his drug and
alcohol treatment. The court allowed McMiller to continue on probation after three
previous probation violations. Under K.S.A. 2019 Supp. 22-3716(c)(7)(B), the court
could have revoked McMiller's probation earlier, but chose not to. The court's final
decision makes clear that it believed McMiller was taking advantage of the rules of the
Community Corrections Residential treatment facility.
Third, McMiller's argument about completing goals while on probation is undercut
because his first three probation violations were for drug and alcohol use. Obviously, the
5
court no longer believed that McMiller was sufficiently benefitting from Community
Corrections Residential treatment after his most recent probation violations.
Because McMiller has failed to show an abuse of discretion, we affirm the court's
revocation of his probation in both cases.
Affirmed.
6