State v. Judd ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,523
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ROBERT E. JUDD,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed February 28, 2020.
Affirmed.
Submitted for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h).
Before GARDNER, P.J., BUSER, J., and BURGESS, S.J.
PER CURIAM: Robert E. Judd appeals from the district court's decision ordering
him to serve his underlying sentence in case No. 18CR1393. We granted Judd's motion
for summary disposition under Kansas Supreme Court Rule 7.041A (2019 Kan. S. Ct. R.
47). The State has filed a response and urges us to affirm the district court's judgment.
On August 23, 2018, Judd pled guilty to criminal possession of a weapon by a
convicted felon. The district court sentenced Judd to an 18-month probation term with an
underlying 15-month prison term. While on probation, Judd stipulated to violating his
probation and received a three-day jail sanction.
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In May 2019, Judd stipulated to additional violations of his probation. The district
court bypassed intermediate sanctions and revoked Judd's probation after finding that his
welfare would be better served by serving a prison sentence. The district court found that
Judd had a long-term history of drug use and opportunities for treatment did not assist in
reforming Judd—he continued to commit crimes after going through treatment on
multiple occasions. The district court also noted that Judd failed to comply with the
probation terms. The district court imposed the underlying 15-month sentence. At the
same hearing, the district court imposed a 28-month prison sentence on Judd in a separate
case, No. 19CR291. The district court ordered Judd to serve these sentences concurrently.
On appeal, Judd contends the district court abused its discretion by imposing his
original underlying sentence rather than a lesser sentence. See K.S.A. 2018 Supp. 22-
3716(c)(1)(E) (Upon revocation, the district court has jurisdiction to modify a sentence
by allowing the court to impose the underlying sentence or any lesser sentence.); State v.
McGill, 271 Kan. 150, 153-54, 22 P.3d 597 (2001) (A sentencing court may impose the
underlying sentence or any lesser sentence upon revocation of the defendant's
probation.).
An appellate court reviews the district court's decision to grant or deny a
defendant's request for a lesser sentence for an abuse of discretion. See State v. Reeves,
54 Kan. App. 2d 644, 648, 403 P.3d 655 (2017), rev. denied 307 Kan. 992 (2018). A
judicial action constitutes an abuse of discretion if (1) no reasonable person would take
the view adopted by the trial court; (2) it is based on an error of law; or (3) it is based on
an error of fact. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015). The party
asserting an abuse of discretion bears the burden of establishing it. State v. Stafford, 296
Kan. 25, 45, 290 P.3d 562 (2012).
Judd fails to present any facts that support an abuse of discretion finding. The
district court revoked Judd's probation pursuant to K.S.A. 2018 Supp. 22-3716(c)(9).
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Both Judd and the State agree that he violated his probation. Judd requested that the
district court impose a graduated sanction rather than impose the underlying sentence.
Once the district court announced its decision to revoke, however, Judd did ask the
district court to modify the previously imposed sentence by reducing the term of
imprisonment.
Had Judd requested a lesser sentence, the district court had reason to deny the
request. During the probation revocation hearing, the district court noted that Judd had
squandered his chance for treatment while on probation. The State noted there was a
nine-month period where Judd's whereabouts were unknown and he did not comply with
any of his probation terms. The district court adopted the State's arguments in deciding to
revoke and impose the original prison sentence. On these facts, there is no basis to
conclude that the district court abused its discretion by not reducing Judd's previously
imposed sentence.
Based on a complete review of the record, there is factual and statutory support for
the district court to have revoked Judd's probation and impose the previously ordered
prison sentence of 15 months.
Affirmed.
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