State v. Bewley ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,070
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
CHRISTOPHER CASH BEWLEY,
Appellant.
MEMORANDUM OPINION
Appeal from Montgomery District Court; F. WILLIAM CULLINS, judge. Opinion filed February
28, 2020. Affirmed.
Submitted for summary disposition pursuant to K.S.A. 2019 Supp. 21-6820(g) and (h).
Before HILL, P.J., GREEN and WARNER, JJ.
PER CURIAM: Christopher Cash Bewley appeals the district court's order revoking
his probation and imposing his underlying prison sentence. We granted Bewley's motion
for summary disposition of this appeal under Supreme Court Rule 7.041A (2019 Kan. S.
Ct. R. 47). We affirm.
In December 2016, Bewley pleaded no contest to charges of burglary, theft, and
criminal trespass. In January 2018, the district court sentenced him to an 18-month prison
term; the court then suspended this sentence and ordered Bewley serve 24 months'
probation through community corrections. Bewley agreed to follow certain conditions
during his probation term, including complying with requirements imposed by his
intensive supervision officer and refraining from possessing drugs and violating the law.
1
But during probation, Bewley failed a drug test and admitted using methamphetamine.
On a separate occasion, he was charged with driving without a license and possessing
methamphetamine. He also failed to report to his supervision officer and to pay court
costs he incurred as a result of his plea.
In December 2018, Bewley admitted to violating the conditions of his probation.
The court therefore revoked his probation. But the court granted Bewley's request to
refrain from ruling on the appropriate disposition for these violations for several weeks,
while he attended drug court in Neosho County, to determine whether he would better
respond to supervised probation during that program. In March 2019, the court revoked
Bewley's probation and imposed the underlying prison sentence, relying on a case report
from his supervision officer stating he was resistant to drug treatment. Bewley appeals
the district court's decision.
Bewley argues the district court erred by revoking his probation and imposing the
underlying sentence. Under the law in effect when Bewley violated the terms of his
probation, the court could revoke probation without imposing an intermediate sanction
when a defendant originally convicted of a felony committed a new felony or
misdemeanor while on probation. K.S.A. 2018 Supp. 22-3716(c)(8)(A). The decision to
revoke probation when evidence of a violation exists lies in the district court's discretion.
State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). The State must prove the
violation by a preponderance of the evidence. 281 Kan. 1168, Syl. ¶ 1.
Appellate courts review a district court's discretionary probation revocation
decision for an abuse of discretion. The reviewing court will uphold a revocation decision
unless no reasonable person would agree with it or the district court based its decision on
a mistake of fact or law. State v. Brown, 51 Kan. App. 2d 876, 879-80, 357 P.3d 296(2015), rev. denied 304 Kan. 1018 (2016).
2
Here, the record reflects that Bewley was arrested twice during his probation for
driving with a canceled, suspended, or revoked license and once for possessing
methamphetamine. Both these offenses are at least misdemeanors. See K.S.A. 2019
Supp. 8-262(a)(1); K.S.A. 2019 Supp. 21-5706(b)(2), (c)(2) (felony).
Bewley admitted to violating his probation by possessing methamphetamine and
driving with a suspended license; doing so established a violation by a preponderance of
the evidence. Since these violations were at least misdemeanors, Kansas law permitted
the district court to revoke his probation and impose his underlying 18-month prison
sentence. The court's decision to do so in this case—particularly after allowing Bewley
several weeks to demonstrate his willingness to comply with probation and drug
treatment—was reasonable and supported by the record. The district court did not abuse
its discretion by revoking Bewley's probation and imposing his underlying prison
sentence.
Affirmed.
3