State v. Butler ( 2020 )

NOT DESIGNATED FOR PUBLICATION
Nos. 121,251
121,252
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
SHANE DANIEL BUTLER,
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. 2019 Supp. 21-6802(g) and (h).
Before GARDNER, P.J., BUSER, J., and BURGESS, S.J.
PER CURIAM: Shane Daniel Butler appeals the district court's decision that
revoked his probation and ordered him to serve his original sentences. We granted
Butler's motion for summary disposition under Supreme Court Rule 7.041A (2019 Kan.
S. Ct. R. 47). The State has responded that it does not object to summary disposition, and
it requests that we affirm the district court's judgment.
In May 2018, Butler pleaded guilty in case No. 18 CR 58 to two counts of
forgery—severity level 8 nonperson felonies. His criminal history score for the offense
was G. Given the severity of his crimes and his criminal history, our statutes raised a
presumption that Butler would be granted probation at sentencing. See K.S.A. 2017
1
Supp. 21-6804(a). But Butler was already on probation for a prior felony and had
committed his new crime while on felony bond. Thus, the district court could have relied
on special rules to sentence Butler to prison rather than grant him probation. See K.S.A.
2017 Supp. 21-6604(f)(1), (4). But the district court did not do so. Instead, the court
granted Butler 18 months' probation with an underlying 9-month prison term.
In September 2018, Butler pleaded guilty in case No. 18 CR 1316 to aggravated
assault, fleeing or attempting to elude, interference with a law enforcement officer, and
two counts of forgery. Butler's criminal history score then was E. The court sentenced
Butler in October 2018, once again declining to apply the special rules. It granted him 24
months' probation with an underlying prison term of 46 months.
At the same time the district court sentenced Butler in 18 CR 1316, it sanctioned
him for violating his probation in 18 CR 58. The court extended his probation term and
ordered Butler to serve three days in jail.
In spring 2019, Butler's probation officer filed a warrant in each case, alleging
Butler had violated his probation by committing new crimes. Butler admitted to the
allegations and requested a 30- or 120-day sanction rather than serving the remainder of
his underlying sentences. Butler argued that he would benefit from an intermediate
sanction followed by drug treatment. Yet the district court denied his request and revoked
Butler's probation, ordering him to serve the remainder of his underlying sentences
consecutively.
Butler now appeals, arguing solely that the district court abused its discretion in
revoking his probation and ordering him to serve his original prison sentences. He
contends that instead of incarcerating him, a reasonable person would have
acknowledged that he needed drug treatment and would have allowed him to obtain that
treatment.
2
Once a probation violation has been established, the decision to revoke probation
is within the discretion of the district court. See State v. Skolaut, 286 Kan. 219, 227-28,
182 P.3d 1231 (2008). Judicial discretion is abused if the action is (1) arbitrary, fanciful,
or unreasonable, i.e., if no reasonable person would have taken the view adopted by the
trial court, (2) based on an error of law, or (3) based on an error of fact. State v. Jones,
306 Kan. 948, Syl. ¶ 7, 398 P.3d 856 (2017). Butler bears the burden to show an abuse of
discretion by the district court. See State v. Rojas-Marceleno, 295 Kan. 525, 531, 285
P.3d 361 (2012).
When a probationer violates the terms of probation, Kansas law generally requires
imposition of an intermediate sanction, such as short periods of incarceration, followed
by a return to probation, rather than being sent to prison to serve the sentence. K.S.A.
2018 Supp. 22-3716(c). But intermediate sanctions are not required when the probationer
commits a new crime. K.S.A. 2018 Supp. 22-3716(c)(8)(A). Butler admits that he had
committed a new crime so the district court had statutory authority to revoke his
probation.
Butler argues only that the district court acted unreasonably by not imposing an
intermediate sanction which would allow him to seek drug treatment outside of prison.
As noted earlier, unless the district court has made a legal or factual error, we may find
an abuse of discretion only when no reasonable person would agree with the decision
made by the district court. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011). Given
the district court's forbearance—twice—by granting Butler probation at sentencing even
though special rules would have allowed his immediate imprisonment, we find it
unsurprising that the district court chose to revoke Butler's probation after he committed
additional crimes. Butler could have sought and obtained drug treatment while he was on
probation but did not choose to do so. Instead, he chose to commit new crimes despite the
court's grace to him. Under the facts of record, we are not persuaded that no reasonable
3
person would have taken the view of the district court. As a result, we conclude the
district court did not abuse its discretion.
Affirmed.
4