State v. Parks ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 122,711
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
TIMOTHY L. PARKS,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; ERIC WILLIAMS, judge. Opinion filed October 30, 2020.
Affirmed.
Submitted by the parties for summary disposition pursuant to K.S.A. 2019 Supp. 21-6820(g) and
(h).
Before ARNOLD-BURGER, C.J., BUSER and WARNER, JJ.
PER CURIAM: Timothy L. Parks appeals the revocation of his probation and
imposition of his underlying sentence. We granted Parks' motion for summary disposition
of his appeal under Supreme Court Rule 7.041A (2020 Kan. S. Ct. R. 47). Finding no
abuse of discretion by the district court, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Parks pled guilty to an offender registration violation, a severity level 6 person
felony. The date of his offense was January 1, 2018. His presumptive sentence was
1
prison, but he was granted a downward dispositional departure to probation for 24
months with a 34-month underlying prison term. As a condition of probation, he was
ordered to obey all laws and refrain from consuming illegal drugs. Parks was required to
register due to 2005 convictions for aggravated criminal sodomy and aggravated indecent
liberties with a child.
In December 2018, Parks tested positive for methamphetamine/amphetamines and
admitted he had consumed heroin. He consented to a two-day jail sanction. Eight months
later, a warrant was issued for Parks alleging that he committed the offense of aggravated
assault. At a combined plea and probation violation hearing, Parks pled guilty to two
counts of aggravated assault, a severity level 7 person felony. The district court revoked
Parks' probation and ordered him to serve his underlying sentence because he committed
a new crime and his original sentence was the result of a dispositional departure. Parks
timely appeals.
ANALYSIS
Once a probation violation has been established the district court's decision to
revoke the offender's probation and impose the underlying sentence is discretionary
unless otherwise limited by statute. See State v. Dooley, 308 Kan. 641, 647, 423 P.3d 469
(2018). A judicial action constitutes an abuse of discretion if the action (1) is
unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. The party
alleging the abuse of discretion bears the burden of proof. State v. Thomas, 307 Kan. 733,
739, 415 P.3d 430 (2018). The judicial action is unreasonable when no reasonable person
would have taken the same action. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191
(2006).
Kansas statute limits the court's discretion in deciding how to sanction a felony
probation violator. K.S.A. 2017 Supp. 22-3716(c). The statute provides that a sentencing
2
court should impose a series of intermediate, graduated sanctions before ordering a
probation violator to serve his or her underlying sentence, unless certain exceptions
apply. For example, the district court need not impose any intermediate sanction if the
offender "commits a new felony or misdemeanor while the offender is on probation" or if
the probation "was originally granted as the result of a dispositional departure granted by
the sentencing court." K.S.A. 2017 Supp. 22-3716(c)(8)(A), (c)(9)(B).
Here, the district court's decision to revoke Parks' probation and impose his
underlying sentence was not based on an error of fact or law. The court had the statutory
authority to do so because Parks committed a new crime and his probation was originally
granted as the result of a dispositional departure. The district court's decision was also
reasonable. Parks was required to register due to two serious sex offenses. He committed
two more person felonies while on probation for a presumptive prison crime. This was
not his first probation violation. A reasonable person could agree with the district court's
decision.
Affirmed.
3