State v. Briceno ( 2020 )

NOT DESIGNATED FOR PUBLICATION
Nos. 121,494
121,495
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DIEGO BRICENO,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed July 31, 2020.
Affirmed.
Submitted by the parties for summary disposition pursuant to K.S.A. 2019 Supp. 21-6820(g) and
(h).
Before BUSER, P.J., HILL and WARNER, JJ.
PER CURIAM: In early 2018, Diego Briceno pled guilty to one count each of
aggravated assault, criminal threat, and criminal possession of a weapon. Based on an
agreement between the parties, the State joined Briceno in asking for a downward
dispositional departure to probation. The court complied with their request and sentenced
Briceno to 43 months' incarceration but granted a dispositional departure to probation,
subject to certain conditions.
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Then in June 2019, Briceno admitted he violated several conditions of his
probation. He admitted to breaking the law by possessing marijuana. After hearing this,
the court found that Briceno had violated the conditions of probation and revoked his
probation. The court then reduced his controlling prison sentence to 24 months and sent
him to prison. Briceno timely appealed the revocation of his probation.
We review probation revocation for an abuse of discretion. Swope v. Musser, 223
Kan. 133, 136, 573 P.2d 587 (1977). It is up to the party alleging abuse of discretion to
prove it. State v. Rojas-Marceleno, 295 Kan. 525, 531, 285 P.3d 361 (2012). To show an
abuse of discretion, a party must show that the court's decision was:
• arbitrary, facial, or unreasonable;
• based on an error of law; or
• based on an error of fact.
State v. Moore, 302 Kan. 685, 692, 357 P.3d 275 (2015). The court's action is
unreasonable and thus an abuse of judicial discretion when no reasonable person would
take the same view. State v. Ransom, 288 Kan. 697, 715, 207 P.3d 208 (2009).
The court's discretion, however, is limited by K.S.A. 2018 Supp. 22-3716(c),
providing that the court should impose a series of intermediate, graduated sanctions
before ordering a probation violator to serve his or her underlying sentence. But the court
can revoke probation without intermediate sanctions if the offender commits a new
felony or misdemeanor. K.S.A. 2018 Supp. 22-3716(c)(8)(A).
Briceno argues that revoking probation without intermediate sanctions was
unreasonable. In other words, that no reasonable person would have acted in the same
way as the district court. We are not persuaded that this is so. Briceno's new crime
allowed the court to revoke his probation without intermediate sanctions. The court
revoked Briceno's probation after he violated several conditions of probation: being in
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the company of gang members, testing positive for cocaine, and possessing marijuana.
After considering these violations and Briceno's criminal history, the court decided to
revoke his probation. We do not see this revocation as unreasonable.
While the court could have imposed intermediate sanctions, it was not legally
obliged to because of Briceno's new crime. Refusing to impose an intermediate sanction
was not beyond the scope of reasonable action based on these violations. We, therefore,
affirm the district court's decision to revoke Briceno's probation and impose a modified
prison sentence.
Affirmed.
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