State v. Solis ( 2022 )

NOT DESIGNATED FOR PUBLICATION
Nos. 123,804
123,805
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
CIARA ASHLI SOLIS,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; ERIC WILLIAMS, judge. Opinion filed April 8, 2022.
Affirmed.
Kasper Schirer, of Kansas Appellate Defender Office, for appellant.
Kristi D. Allen, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before HURST, P.J., GARDNER, J. and PATRICK D. MCANANY, S.J.
PER CURIAM: Ciara Ashli Solis appeals the district court's decision to revoke her
probation in two cases, arguing the district court misunderstood the applicable
sanctioning scheme and thus based its decision on a legal error. Solis also argues the
decision was unreasonable. Finding no error, we affirm.
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Factual and Procedural Background
Solis pleaded guilty to burglary and two counts of theft in 19 CR 2195 for crimes
she committed in July 2019. She later pleaded guilty in 19 CR 2699 to an aggravated
weapons violation and possession of methamphetamine for crimes committed in June
2018. The district court granted Solis a downward dispositional departure in both cases.
In 19 CR 2195, the district court sentenced Solis to 37 months' imprisonment but granted
her 24 months' probation. The district court imposed a consecutive sentence in 19 CR
2699 of 39 months' imprisonment but granted 12 months' probation.
Around two and a half months following sentencing, the State filed a probation
violation warrant against Solis alleging the commission of new crimes and other
violations, including:
• possessing stolen property;
• driving with a suspended license and without insurance or proper tags;
• associating with "someone of harmful and/or disreputable character"; and
• failing to notify her supervising officer of her contact with law enforcement within
24 hours.
The State issued a second violation warrant a few weeks later, alleging these additional
offenses:
• forgery/making or altering a written document;
• criminal possession of a firearm by a convicted felon;
• interference with law enforcement/obstruction of a felony warrant;
• two counts of possession of opiate/opium/narcotic or certain stimulant;
• two counts of possession of marijuana;
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• use/possession with intent to use drug paraphernalia; and
• possession of drug paraphernalia.
The district court held an evidentiary hearing to consider these allegations.
At the hearing, Solis admitted to committing the driving offenses and associating
with "someone harmful" as alleged in the first warrant. She also admitted to three of the
drug crimes alleged in the second warrant. Solis denied the remaining allegations. The
State withdrew the contended allegations but, per the recommendation of Solis'
supervisor, requested the district court revoke Solis' probation. Solis asked to reinstate
probation or at least be granted a modified sentence if revoked.
The district court revoked Solis' probation and ordered her to serve her unmodified
sentence, finding Solis: (1) received probation as the result of dispositional departures;
(2) committed new crimes; (3) received a recommendation from her supervisor for
revocation; (4) did not meet the criteria for drug court or an adult residential program;
and (5) exhausted available community programs. The district court relied on Solis'
commission of new offenses to revoke in 19 CR 2195. But recognizing the law was
different in June 2018 when Solis committed the offenses for 19 CR 2699, the district
court found that besides committing new offenses, the evidence proved the "members of
the public [would] be jeopardized" if it allowed Solis to continue probation. The court
also found that because of the exhaustion of available community resources, Solis'
welfare would not be served by continuing probation.
Solis timely appealed both cases. We consolidated the cases into this single
appeal.
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Discussion
Once a probation violation is established, the decision to revoke probation is
within the sound discretion of the district court. See State v. Coleman, 311 Kan. 332, 334,
460 P.3d 828 (2020). A district court abuses its discretion if it bases its decision on legal
or factual errors or if no reasonable person would agree with its decision. State v. Ballou,
310 Kan. 591, 615, 448 P.3d 479 (2019). Solis bears the burden to show an abuse of
discretion by the district court. See State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430(2018).
K.S.A. 22-3716 controls the procedure for revoking a defendant's probation. The
statute generally requires the imposition of a graduated sanction for defendants that
violate the terms of their probation. For crimes committed before July 1, 2019, the district
court is typically required to impose either a 2-day or 3-day jail sanction and then a 120-
day or a 180-day prison sanction before revoking a defendant's probation. See K.S.A.
2017 Supp. 22-3716(c)(1)(A)-(D). But the statute grants the district court discretion to
revoke probation without imposing intermediate sanctions in several circumstances. For
example, under K.S.A. 2017 Supp. 22-3716(c)(9)(A), a district court may revoke a
defendant's probation without imposing a sanction if the district court finds "with
particularity" that the safety of the members of the public will be jeopardized or that the
welfare of the offender will not be served by an immediate sanction. And for most felony
offenses committed after July 1, 2019, the district court may revoke probation based on
the commission of a new crime. See K.S.A. 2019 Supp. 22-3716(c)(7)(C); see also State
v. Dominguez, 58 Kan. App. 2d 630, Syl. ¶ 3, 473 P.3d 932 (2020) (amended
intermediate sanction scheme does not apply retroactively to probation violators who
committed their crimes before effective date of amendment).
Solis claims the district court abused its discretion by ordering her to serve her
unmodified prison sentences. Solis admits that under K.S.A. 2017 Supp. 22-
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3716(c)(9)(A), the district court may revoke a defendant's probation without first
imposing intermediate sanctions if the court makes appropriate findings on public safety
or the defendant's welfare. Solis also tacitly admits that the district court may bypass
intermediate sanctions and revoke probation based on the commission of a new crime
under K.S.A. 2019 Supp. 22-3716(c)(7)(C). Still, Solis contends the district court's
decision was based on legal error. She also asks us to reverse the decision as
unreasonable.
Decision Was Not Based on an Error of Law
Solis first claims that the district court did not understand how the applicable
graduated sanctioning scheme works and thus based its decision to revoke her probation
on legal error. Citing State v. Cisneros, 42 Kan. App. 2d 376, 380-81, 212 P.3d 246(2009) (finding error based on a district court's misunderstanding of its statutory authority
to reduce defendant's sentence at probation violation hearing and remanding for further
consideration of defendant's modification request), she argues that the district court's
alleged misunderstanding constitutes reversible error.
We find Solis' reference to Cisneros misplaced. Unlike Cisneros, the record shows
the district court considered Solis' request for a modified sentence and understood its
statutory authority under the applicable statutory provisions. Cf. 42 Kan. App. 2d at 380-
81. So the record does not support this claims.
Solis' argument also ignores the authority of K.S.A. 2017 Supp. 22-3716(c)(9)(B).
That statute allows the district court to revoke a defendant's probation when it "was
originally granted as the result of a dispositional departure." The district court correctly
found that, in both underlying cases, Solis originally faced presumptive prison sentences
and probation was granted only as the result of dispositional departures. So the district
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court properly relied on K.S.A. 2017 Supp. 22-3716(c)(9)(B) in revoking Solis'
probation.
Solis also argues that the district court's findings on her welfare and the
community's safety did not meet K.S.A. 2017 Supp. 22-3716(c)(9)(A)'s "particularity"
requirement. Cf. State v. Duran, 56 Kan. App. 2d 1268, 1272-77, 445 P.3d 761 (2019).
But she raises this argument only in passing, so we find it conclusory. Nor does Solis
challenge the district court's decision to revoke her probation in 19 CR 2195 under
K.S.A. 2019 Supp. 22-3716(c)(7)(C) as legally erroneous. So we dismiss these two
claims as waived or abandoned, and we summarily affirm the revocation of Solis'
probation in 19 CR 2195. State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021)
(dismissing issue not briefed); State v. Meggerson, 312 Kan. 238, 246, 474 P.3d 761(2020) (dismissing points raised incidentally).
Decision Was Not Arbitrary, Fanciful, or Unreasonable
Solis also claims that the district court's decision was unreasonable because the
court heard evidence of her drug addiction and personal tragedies. Solis references legal
and medical articles to challenge the propriety of sentencing Kansas offenders with
persistent drug abuse issues to prison instead of probation. She then contends that the
district court's decision to revoke conflicted with legislative goals and "medically
recognized best practices for preventing recidivism." She also argues that the decision led
to an unnecessary tax burden.
But Solis does not convince us that no reasonable person would have taken the
district court's position, so we must affirm. See Thomas, 307 Kan. at 739. Unless required
by law, probation is not a right; it is an act of grace granted by the court. State v. Gary,
282 Kan. 232, 237, 144 P.3d 634 (2006). The record shows that within three months of
being granted probation in her criminal cases, Solis committed several new offenses and
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repeatedly violated the terms of her probation. And Solis does not show any appropriate
alternative the district court could have employed to better address Solis' addiction issues.
We find no abuse of discretion under these circumstances.
Affirmed.
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