State v. Dudzinski ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,226
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ANDREW DUDZINSKI,
Appellant.
MEMORANDUM OPINION
Appeal from Wyandotte District Court; MICHAEL A. RUSSELL, judge. Opinion filed April 22,
2022. Affirmed.
Submitted by the parties for summary disposition pursuant to K.S.A. 2020 Supp. 21-6820(g) and
(h).
Before POWELL, P.J., GREEN, J., and RICHARD B. WALKER, S.J.
PER CURIAM: Andrew Dudzinski appeals the district court's decision to revoke his
probation and impose his underlying prison sentence. He asserts the district court abused
its discretion by revoking his probation.
We granted Dudzinski's motion for summary disposition under Supreme Court
Rule 7.041A (2022 Kan. S. Ct. R. at 48). After reviewing the record on appeal and
finding no error, we affirm the district court's decision.
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FACTUAL AND PROCEDURAL HISTORY
In January 2020, Dudzinski pled no contest to one count of attempted aggravated
robbery, a severity level 5 person felony. In August 2020 the district court sentenced
Dudzinski. At the time of sentencing, he had a criminal history score of A as defined by
the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2020 Supp. 21-6801 et
seq. Based on the severity level of the crime and his A criminal history score, the KSGA
outlined a presumptive 136-, 130-, or 122-month prison sentence, depending on whether
the district court imposed the aggravated, standard, or mitigated sentence, respectively.
K.S.A. 2020 Supp. 21-6804(a). The district court imposed an underlying sentence of 130
months' imprisonment, but granted Dudzinski's motion for dispositional departure and
sentenced him to 36 months of probation.
On March 3, 2021, the State moved to revoke Dudzinski's probation. The motion
alleged that he failed to maintain contact with his community corrections intensive
supervision officer (ISO), failed to pay outstanding court fees, failed to maintain
employment or provide his ISO with proof of disability benefits, failed to submit to
random drug testing, failed to complete substance abuse and mental health assessments
and follow recommendations within 60 days, and failed to complete anger management
assessment and follow recommendations within 60 days. The same day, the district court
issued a bench warrant for Dudzinski.
After Dudzinski was apprehended, in June 2021, the district court held a hearing
on the State's motion. During the hearing, Dudzinski waived his right to an evidentiary
hearing and stipulated to the violations alleged in the State's motion. He also asked the
district court to reinstate probation. But the district court denied Dudzinski's request,
revoked his probation, and ordered him to serve his underlying sentence of 130 months'
imprisonment.
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Dudzinski filed a timely notice of appeal.
ANALYSIS
As his single issue on appeal, Dudzinski maintains the district court abused its
discretion by revoking his probation and ordering him to serve his underlying prison
sentence.
Appellate courts review a district court's decision to revoke probation for an abuse
of discretion. State v. Coleman, 311 Kan. 332, 334, 460 P.3d 828 (2020). A judicial
action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2)
it is based on an error of law; or (3) it is based on an error of fact. State v. Ingham, 308
Kan. 1466, 1469, 430 P.3d 931 (2018). Dudzinski bears the burden of showing an abuse
of discretion. See State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018).
While a district court ordinarily must apply intermediate sanctions before revoking
probation and ordering service of the original sentence, there are exceptions that allow a
district court to revoke probation without having previously imposed sanctions. See
K.S.A. 2020 Supp. 22-3716(c)(1), (7). One such exception allows a district court to
revoke probation without previously imposing a sanction if "probation . . . was originally
granted as the result of a dispositional departure granted by the sentencing court pursuant
to K.S.A. 21-6815, and amendments thereto." K.S.A. 2020 Supp. 22-3716(c)(7)(B).
That is what the district court relied on here. As we have noted, Dudzinski
originally pled no contest to attempted aggravated robbery, a severity level 5 person
felony. Dudzinski's no-contest plea to this crime, paired with his A criminal history score,
meant he faced a presumptive 136-, 130-, or 122-month prison sentence, depending on
whether the district court imposed the aggravated, standard, or mitigated sentence,
respectively. See K.S.A. 2018 Supp. 21-6804(a). Instead of imposing the presumptive
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sentence, the district court granted Dudzinski's motion for dispositional departure and
sentenced him to 36 months of probation, with an underlying sentence of 130 months'
imprisonment.
Once a probation violation and an exception to the intermediate sanctions
requirement are established, the district court has discretion in determining whether to
continue the 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),
rev. denied 304 Kan. 1018 (2016).
Dudzinski argues the district court abused its discretion when it revoked his
probation and ordered him to serve his underlying prison sentence. But since the district
court originally granted probation as the result of a dispositional departure, the district
court was well within its discretion to order him to serve a modified prison sentence.
Dudzinski does not point to any errors of law or fact in the district court's decision, nor
does he show that no reasonable person would have taken the same position. Based on
the record before us, we conclude the district court did not abuse its discretion.
Affirmed.
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