State v. Miller

NOT DESIGNATED FOR PUBLICATION
Nos. 124,839
124,840
124,841
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
THERESA MICHELLE MILLER,
Appellant.
MEMORANDUM OPINION
Appeal from Shawnee District Court; STEVEN R. EBBERTS, judge. Opinion filed November 18,
2022. Affirmed.
Submitted by the parties for summary disposition pursuant to K.S.A. 2021 Supp. 21-
6820(g) and (h).
Before ARNOLD-BURGER, C.J., HILL and SCHROEDER, JJ.
PER CURIAM: Theresa Michelle Miller appeals the revocation of her probation and
order sending her to prison in three Shawnee County cases. We consolidated her appeals
and granted her motion for summary disposition under Supreme Court Rule 7.041A
(2022 Kan. S. Ct. R. at 48). We find no abuse of discretion by the district court and we
affirm.
In Shawnee County case No. 18CR2907, Miller pled guilty to possession of
methamphetamine, a severity level 5 nonperson felony. Her presumptive sentencing
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range was in a border box. In May 2020, the court sentenced Miller to 18 months of
probation with mandatory drug treatment through Senate Bill 123 and an underlying 24-
month prison term.
In June 2020, in Shawnee County case No. 20CR643, Miller pled guilty to
burglary of a nondwelling with intent to steal a firearm, a severity level 5 nonperson
felony. The court granted her a downward dispositional departure to 36 months' probation
with a 57-month underlying prison sentence.
In September 2020, the State moved to revoke Miller's probation in 18CR2907
alleging that she violated her probation by:
• failing to report to her supervisor;
• failing to report to Senate Bill 123 drug treatment; and
• breaking the law—she was arrested for burglary and theft.
At the violation hearing, Miller stipulated to the first two technical violations. The
court sanctioned Miller with 60 days in the county jail with the possibility of release to
treatment when a bed became available. The court ordered her to take her medication as
prescribed.
In January 2021, in Shawnee County case No. 20CR2107, Miller pled no contest
to attempted burglary to a vehicle, a severity level 10 nonperson felony. The court
sentenced her to 12 months' probation with an underlying 10-month prison term.
In February 2021, the State filed a motion to revoke Miller's probation in
18CR2907 and 20CR643 alleging Miller violated her probation by:
• failing to report to her supervisor;
• using drugs;
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• breaking the law—she was arrested for disobeying a direct order, criminal
trespass, and lurking and prowling with the intent to commit a crime; and
• failing to keep her supervisor apprised of her address.
At the violation hearing, Miller stipulated to the violations. The court sanctioned
her to 60 days in jail, with a possibility of early release to inpatient treatment.
In August 2021, Miller admitted to violating her probation by failing to remain
law abiding due to an arrest on August 5. She waived a hearing and accepted a three-day
jail sanction.
In August and September 2021, the State filed motions in all cases to revoke
Miller's probation alleging she violated her probation by:
• failing to report to her supervisor;
• breaking the law—she was arrested on August 22 on municipal charges for
pedestrian in roadway with sidewalk available and disobeying a lawful police
order;
• failing to report for drug treatment; and
• failing to keep her supervisor apprised of her address.
At the violation hearing in December 2021, Miller's probation officer testified that
Miller failed to report for supervision on several occasions, she did not live at the address
provided, and she did not report to her scheduled intake for outpatient treatment. Miller
had previously successfully completed inpatient treatment. The probation officer
explained the alleged new law violation was that Miller was walking in the street and did
not respond when officers ordered her to get out of the street.
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The court found Miller violated the terms and conditions of her probation by
failing to report for supervision, failing to remain law abiding, failing to report for
treatment, and failing to keep her supervisor apprised of her address. The court agreed
with the defense that the alleged law violation was a "de minimis item or issue." And the
court understood that Miller was homeless and therefore conveying her location to her
supervising officer was difficult. But the court found that "looking at these things in
totality and combination, they rise to the level where the Court finds that she is in
violation of the terms and conditions of her probation."
The court revoked Miller's probation and ordered her to serve her underlying
sentences. The court reasoned that considerable resources had already been expended on
Miller and she had simply not changed her behavior. Miller timely appeals.
On appeal, Miller simply contends "the district court erred in revoking her
probation and in imposing the underlying prison sentence."
The State must establish that a probationer violated the terms of probation by a
preponderance of the evidence—or that the violation is more probably true than not true.
State v. Lloyd, 52 Kan. App. 2d 780, 782, 375 P.3d 1013 (2016). We review the district
court's factual findings for substantial competent evidence. State v. Inkelaar, 38 Kan.
App. 2d 312, 315, 164 P.3d 844 (2007).
Here, Miller tried to mitigate the importance of her violations, but did not
seriously dispute the allegations. The district court's finding that she violated her
probation was supported by substantial competent evidence.
Once a probation violation has been established, the district court's decision to
revoke the offender's probation and impose the original sentence is discretionary unless
otherwise limited by statute. The court abuses its discretion if the decision is (1) arbitrary,
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fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of
fact. The offender bears the burden of establishing such abuse of discretion. State v.
Tafolla, 315 Kan. 324, 328, 508 P.3d 351 (2022).
Miller's underlying crimes were committed in October 2018, April 2020, and
September 2020. Therefore, the district court's decision to revoke her probation and order
her to serve her underlying sentences must have been exercised within the statutory
framework of K.S.A. 2018 Supp. 22-3716, K.S.A. 2019 Supp. 22-3716, and K.S.A. 2020
Supp. 22-3716. The court abuses its discretion when it does not follow the statutory
procedure. See State v. Wilson, 314 Kan. 517, 520-21, 501 P.3d 885 (2022).
Under K.S.A. 2018 Supp. 22-3716(c), the district court must impose a series of
intermediate, graduated sanctions before ordering a probation violator to serve their
underlying sentence, unless certain exceptions apply. The first sanction is a two- or three-
day jail sanction. The second is a 120- or 180-day prison sanction. The district court need
not impose any intermediate sanction if the court finds and sets forth with particularity
the reasons for finding that the safety of members of the public would be jeopardized, the
probation was originally granted as the result of a dispositional departure, the offender
committed "a new felony or misdemeanor" while on probation, or the offender absconded
while on probation. K.S.A. 2018 Supp. 22-3716(c)(8)-(9).
Under K.S.A. 2019 and 2020 Supp. 22-3716(c), the district court may revoke an
offender's probation after the offender has received at least one two- or three-day jail
sanction, or if the court finds one of the exceptions to the intermediate sanctioning
scheme listed above.
Here, the district court did not make an error of law or fact. The court had the
statutory authority to revoke Miller's probation in the 2020 cases because she already
served a three-day jail sanction. The court had the statutory authority to revoke Miller's
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probation in 18CR2907 because she committed a new misdemeanor while on probation.
A reasonable person could agree with the district court's decision to revoke her probation.
Miller had been given the opportunity for treatment. But she continued to rack up
probation violations and break the law. Though the violations supporting this revocation
hearing were not serious, the standard is whether no reasonable person would have
agreed with the district court. And the burden is on the offender. Miller did not meet her
burden to show an abuse of discretion.
Affirmed.
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