State v. Thomas

NOT DESIGNATED FOR PUBLICATION
Nos. 121,772
121,773
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DARYL L. THOMAS,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed June 26,
2020. Affirmed in part and dismissed in part.
Submitted for summary disposition pursuant to K.S.A. 2019 Supp. 21-6820(g) and (h).
Before SCHROEDER, P.J., HILL and GARDNER, JJ.
PER CURIAM: Daryl L. Thomas appeals the district court's decision to revoke his
probation and impose his underlying consecutive prison sentences in two criminal cases.
We granted Thomas' motion for summary disposition under Supreme Court Rule 7.041A
(2020 Kan. S. Ct. R. 47). Finding no error, we affirm in part and we dismiss in part.
Thomas pled guilty to criminal possession of a weapon in 19CR186 and fleeing
and eluding law enforcement in 19CR337. Although the presumed punishment for those
crimes is imprisonment, Thomas received a dispositional departure sentence to 30
months' probation instead. But if Thomas violated the terms of his probation and it was
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revoked, the district court could impose his underlying prison terms—23 months in
19CR186 and 15 months in 19CR337.
A few weeks after sentencing, Thomas violated his probation terms by missing a
probation appointment and committing a new crime, criminal trespass. After Thomas
admitted to these violations, the district court specifically applied K.S.A. 2019 Supp. 22-
3716(c)(7)(B) and (C) to support revoking his probation and ordered him to serve his
original prison sentences. On appeal, Thomas presents two arguments for why the district
court erred.
First, Thomas argues the district court violated his rights under the Sixth
Amendment to the United States Constitution when it enhanced his sentences in both
cases based on his prior criminal history. However, Thomas failed to timely appeal this
issue within 14 days after he was sentenced and placed on probation as required by
K.S.A. 2019 Supp. 22-3608(c). See State v. Inkelaar, 38 Kan. App. 2d 312, 317-18, 164
P.3d 844 (2007) (finding probationer's notice of appeal timely filed as to probation
revocation and not to issues derived from original sentence). Since this issue was raised
out of time, we have no jurisdiction and must dismiss it for lack of jurisdiction. See State
v. Shelly, 303 Kan. 1027, 1036, 371 P.3d 820 (2016) (failure to timely file appeal is
jurisdictional and generally requires dismissal).
Thomas next argues the district court erred in revoking his probation and imposing
his original prison sentences. The district court must base its decision to revoke probation
on a factual finding that the defendant violated a condition of probation. Once a violation
has been established, the decision to revoke probation is within the district court's
discretion. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). The 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
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P.3d 479 (2019). Thomas alleges no factual or legal error, so he must show no reasonable
person would agree with the district court's decision. See 310 Kan. at 615.
Under these facts, we find nothing unreasonable about the district court's decision
to revoke Thomas' probation and impose his original prison sentences when he admitted
to committing a new crime just a few weeks after receiving a dispositional departure to
probation. Probation revocations are controlled by K.S.A. 2019 Supp. 22-3716. Under
K.S.A. 2019 Supp. 22-3716(c)(7)(B) and (C), the district court can bypass sanctions and
impose the underlying prison sentence when a probationer received a downward
dispositional sentence and/or committed a new crime, as happened here. A reasonable
person could agree with the district court that Thomas' actions showed he was not a good
candidate to remain on probation. The district court did not abuse its discretion when it
imposed Thomas' original sentence upon revoking his probation.
Affirmed in part and dismissed in part.
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