State v. Julian

NOT DESIGNATED FOR PUBLICATION
No. 124,229
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JESSE ALAN JULIAN,
Appellant.
MEMORANDUM OPINION
Appeal from Barton District Court; CAREY L. HIPP, judge. Opinion filed February 25, 2022.
Affirmed.
Submitted by the parties for summary disposition pursuant to K.S.A. 2020 Supp. 21-6820(g) and
(h).
Before GARDNER, P.J., HILL and ISHERWOOD, JJ.
PER CURIAM: Jesse Alan Julian asks us to resolve whether the district court
abused its discretion when it revoked his probation and imposed his underlying prison
term following Julian's commission of three new criminal offenses. At Julian's request,
we will resolve this matter through summary disposition under Supreme Court Rule
7.041A (2022 Kan. S. Ct. R. at 48) in lieu of briefs from the parties. After a thorough
review of the matter, we decline to find that the decision of the district court is either
arbitrary or unreasonable. Thus, that decision is affirmed.
1
In June 2018, Julian pleaded no contest to unlawful possession of
methamphetamine and possession of stolen property. The court exercised leniency and
granted Julian a dispositional departure to probation with an underlying prison term of 30
months.
Julian violated his probation in short order and served a one-day jail sanction as a
result. He returned to probation, but his drug dependency remained in the driver's seat
and Julian quickly found himself back in court to answer for a series of violations,
including the commission of three new crimes. The warrant alleged that Julian (1)
admitted to ingesting methamphetamine; (2) failed to report to community corrections for
several months; (3) was unsuccessfully discharged from outpatient substance abuse
treatment; and (4) committed possession of methamphetamine with intent to distribute,
possession of drug paraphernalia, and failure to possess a tax stamp.
The district court conducted an evidentiary hearing, found that Julian committed
each of the alleged violations, and revoked his probation. Julian requested a 60-day jail
sanction followed by inpatient treatment as a consequence for his transgressions. The
judge declined to reinstate probation and commented that while his preference is to afford
offenders the chance for treatment and rehabilitation, Julian already received two such
opportunities and neglected to avail himself of either one. The court bypassed the
intermediate sanction structure on the grounds that Julian committed new crimes and
received probation as the product of a dispositional departure and ordered him to serve
his underlying sentence.
Julian acknowledges that the court's ruling is neither the product of legal nor
factual error. Rather, he argues that because he is saddled with a severe drug dependency
that renders compliance with the terms and conditions of his probation exceedingly
difficult, reinstatement of probation so he can obtain treatment for his addiction is the
more reasonable disposition. He requests reversal of the district court's decision and
2
remand of his case for what he considers a more appropriate result under the
circumstances.
Once a probation violation is established, the district court may revoke a
defendant's probation. State v. Gumfory, 281 Kan. 1168, Syl. ¶ 1, 135 P.3d 1191 (2006).
Thus, we review the district court's revocation of Julian's probation for an abuse of that
discretion. State v. Coleman, 311 Kan. 332, 334, 460 P.3d 828 (2020). Discretion is
abused when the decision at issue is (1) based on an error of law; (2) based on an error of
fact, or (3) is otherwise arbitrary, fanciful, or unreasonable. State v. Levy, 313 Kan. 232,
237, 485 P.3d 605 (2021).
The route taken by the district court does not reflect an abuse of discretion. First,
the fact Julian's violations included the commission of new crimes, and that his probation
arose from the grace of a dispositional departure, enabled the court to bypass any
intermediate sanctions. K.S.A. 2017 Supp. 22-3716(c)(8)(A). Further, while it is true that
another shot at probation may potentially and, ideally, afford Julian an additional
opportunity to seek treatment for his addiction, the reality of this case is that he likely
would not capitalize upon that possibility. The district court clearly understood that
unfortunate reality given Julian twice received and declined to pursue the pathway to
treatment made available to him. Under these circumstances, we decline to find no
reasonable person would agree with the district court's decision.
Affirmed.
3