State v. Cary ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,618
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ZACKARY J. CARY,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; SETH L. RUNDLE, judge. Opinion filed February 19, 2021.
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., GREEN and MALONE, JJ.
PER CURIAM: Zackary J. Cary appeals the Sedgwick County District Court's
judgment to revoke his probation and impose the underlying sentence. Cary moved for
summary disposition under Supreme Court Rule 7.041A (2020 Kan. S. Ct. R. 47). The
State responded and asked that we affirm the trial court's judgment. We granted Cary's
motion for summary disposition, and based on our review of the record, we find no abuse
of discretion by the trial court and affirm.
On August 17, 2017, Cary pled guilty to two offenses committed on June 28,
2017: aggravated battery, a severity level 8 person felony, and criminal possession of a
firearm by a convicted felon, a severity level 8 nonperson felony. At the sentencing
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hearing on October 12, 2017, the trial court imposed a controlling 22-month prison
sentence but granted Cary's motion for a dispositional departure to 18 months' probation.
The court determined that an existing treatment program was likely to be more effective
than prison in reducing the risk of recidivism.
Within three months of being granted probation, Cary consented to serve a 48-
hour jail sanction after admitting to violating his probation by committing theft. One
month later, the State issued a bench warrant alleging Cary violated multiple conditions
of his probation including failing to report, failing to obey the law, and testing positive
for alcohol consumption. On January 10, 2018, after Cary admitted to multiple violations,
the trial court ordered Cary to serve a 120-day prison sanction in Kansas Department of
Corrections.
About a year later, the State issued another bench warrant alleging that Cary again
violated multiple conditions of his probation in November and December 2018. At the
probation violation hearing, Cary admitted to the allegations of failing to report to his
supervision officer, failing to participate in education or personal growth programs as
directed, and failing to obtain and maintain employment. Thus, the trial court determined
that Cary had violated his probation and ordered Cary to complete a community
corrections residential program and to remain in custody until he was accepted into that
program. The trial court also modified Cary's probation by extending it 24 months from
when he was released to begin the community corrections program.
Less than two months later, on March 19, 2019, the State issued a bench warrant
alleging that Cary had violated his probation by testing positive for cocaine and by failing
to return after checking out from his residential center on a temporary pass. The trial
court held the probation violation hearing on February 11, 2020, while it also sentenced
Cary for aggravated escape from custody in another case. Based on the probation
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violations, the trial court revoked Cary's probation and, finding that Cary committed a
new felony while on probation, imposed his underlying sentence of 22 months in prison.
Cary timely appeals.
In his motion for summary disposition, Cary contends that the trial court erred in
revoking his probation and ordering him to serve his underlying prison sentence. Cary
acknowledges, however, that the trial court had discretion to revoke his probation
because he committed a new crime. See K.S.A. 2019 Supp. 22-3716(c)(7)(C) (court may
revoke probation without intermediate sanctions if defendant commits new felony while
on probation); State v. Clapp, 308 Kan. 976, 978, 425 P.3d 605 (2018) (holding this
graduated sanction applies to probation violations that occurred on or after July 1, 2013).
Once the State has established a probation violation and an exception to the
intermediate sanctions requirement, the trial court has discretion to determine whether to
continue probation or to revoke and require the defendant to serve the underlying prison
sentence. See State v. Brown, 51 Kan. App. 2d 876, 879-80, 357 P.3d 296 (2015). When
the issue is whether the trial court imposed the appropriate sanction for the violation, we
review the probation revocation decision for abuse of discretion. State v. Hurley, 303
Kan. 575, 580, 363 P.3d 1095 (2016). Thus, Cary bears the burden to show that the trial
court abused its discretion. See State v. Rojas-Marceleno, 295 Kan. 525, 531, 285 P.3d
361 (2012). The trial court abuses its discretion if its decision is based on legal or factual
error or if no reasonable person would agree with the decision. State v. Ballou, 310 Kan.
591, 615, 448 P.3d 479 (2019).
In January 2020, a jury concluded that Cary committed aggravated escape from
custody while he was residing at his assigned residential center, which Cary does not
dispute. By that time, the trial court had given Cary three chances to complete probation
after he admitted to violating its conditions. We, thus, find the trial court's decision to
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revoke Cary's probation was not beyond the scope of reasonable action. Because Cary
fails to meet his burden to show that no reasonable person would have taken the view
adopted by the trial court, we affirm.
Affirmed.
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