State v. Rose ( 2022 )

NOT DESIGNATED FOR PUBLICATION
Nos. 123,975
123,976
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
TYRONE JAMES ROSE,
Appellant.
MEMORANDUM OPINION
Appeal from Brown District Court; JAMES A. PATTON, judge. Opinion filed April 8, 2022.
Affirmed.
Submitted by the parties for summary disposition pursuant to K.S.A. 2020 Supp. 21-6820(g) and
(h).
Before WARNER, P.J., CLINE, J., and RACHEL L. PICKERING, District Judge, assigned.
PER CURIAM: Tyrone James Rose appeals from the district court's decision to
revoke his probation and impose his underlying prison sentence. We granted Rose's
motion for summary disposition of his appeal under Supreme Court Rule 7.041A (2022
Kan. S. Ct. R. at 48). Rose argues the district court unreasonably revoked his probation
given his willingness to participate in treatment. He asserts that treatment for substance
abuse would better address his addiction problems rather than incarceration. Finding no
abuse of discretion, we affirm.
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In October and December 2019, Rose pleaded no contest to possession of
methamphetamine in 2018CR77 and failure to register as a sex offender in 2018CR78.
The district court sentenced Rose to a 30-month underlying sentence in each case, ran the
sentences consecutive, and granted 24 months of probation. Rose's conviction in
2018CR78 carried a presumptive prison sentence, however, the district court departed
and imposed probation.
In March 2020, Rose's community corrections officer filed an affidavit of
probation violation in district court. The officer alleged that Rose had committed three
violations: (1) Rose failed to update his sex offender registration to include all the
addresses he stayed at; (2) on multiple occasions Rose had failed to report to his
community corrections officer; and (3) Rose admitted to using methamphetamine on one
occasion. In another county, Rose was charged with possession of a controlled substance,
possession of drug paraphernalia, and driving with a suspended license. In September
2020, Rose's community corrections officer filed an amended affidavit, listing these new
charges.
At the December 2020 probation violation hearing, Rose stipulated to three
original violations and that he had been arrested. As for the new charges listed in the
amended affidavit, Rose did not stipulate that he committed a new crime. At the time,
Rose's new case was still pending without a resolution. The district court set the case for
disposition on the new charges.
At the February 2021 disposition hearing, Rose's attorney informed the court that
since the stipulation hearing, Rose had pleaded guilty to possession of drug paraphernalia
and driving with a suspended license. In light of this, Rose's attorney asked the court not to
revoke Rose's probation but instead to place him back on probation so he could receive
addiction treatment. He asserted that Rose's problems on probation stemmed from his
methamphetamine addiction. Rose's attorney stated that Rose was in contact with a
treatment program and because Rose had been incarcerated for several months and was
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clean, he was in a good position to get treatment. Rose's attorney did acknowledge that
Rose still needed to complete both the physical and psychological screens before
attending treatment. Rose also advised the court that the treatment program had not yet
admitted him and that he needed to meet with the treatment program.
The State requested that the district court revoke Rose's probation and impose his
original underlying sentence. Rose's community corrections officer advised the court that
based on Rose's initial performance while on probation, the officer was not optimistic
that Rose could successfully complete his probation if given another chance.
After hearing the parties' arguments, the district court revoked Rose's probation
and ordered him to serve his sentence. The court, however, modified the original sentence
and ran the sentences concurrent. The district court told Rose that the court had
previously granted him a dispositional departure, which had given Rose the opportunity
to be on probation, and that his opportunities were exhausted.
The district court retains the authority to revoke probation and impose the
underlying sentence, bypassing the imposition of intermediate sanctions even for a first-
time violator, if the court finds that (1) the probationer committed a new felony or
misdemeanor; (2) the probationer absconded from supervision; or (3) the safety of
members of the public will be jeopardized or that the welfare of the offender will not be
served by such intermediate sanction. State v. Clapp, 308 Kan. 976, 978, 425 P.3d 605(2018). Once a probation violation and an exception to the intermediate sanctions
requirement are established, the district court has discretion to revoke the defendant's
probation. State v. Gumfory, 281 Kan. 1168, Syl. ¶ 1, 135 P.3d 1191 (2006). We review
the district court's revocation of Rose's probation for an abuse of discretion. See State v.
Coleman, 311 Kan. 332, 334, 460 P.3d 828 (2020). A court abuses its discretion if its
action is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based
on an error of fact. State v. Levy, 313 Kan. 232, 237, 485 P.3d 605 (2021).
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Rose's probation violations were established by his stipulation. Rose stipulated to
the three original violations, his later arrest, and that he had committed a new crime. In
this case, the district court had statutory authority to revoke his probation without
imposing an intermediate sanction because Rose had committed a new crime, namely
driving with a suspended license. See K.S.A. 2020 Supp. 22-3716 (c)(7)(C).
Here, the district court did not abuse its discretion by revoking Rose's probation.
Rose committed several probation violations, including committing a new crime. While
Rose had requested another chance on probation so that he could get substance abuse
treatment, his community corrections officer advised the court he was not optimistic that
Rose could successfully complete probation. Additionally, at the initial sentencing
hearing, the district court had granted Rose's dispositional departure motion. See K.S.A.
2020 Supp. 22-3716(c)(7)(B). In other words, the court had given Rose the opportunity to
complete probation despite Rose's presumptive prison sentence. Rose did not take
advantage of that opportunity. Under these circumstances, we cannot say that no
reasonable person would agree with the district court's decision.
Affirmed.
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