State v. Green

NOT DESIGNATED FOR PUBLICATION
Nos. 122,087
122,088
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
BRYAN L. GREEN JR.,
Appellant.
MEMORANDUM OPINION
Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed August 28, 2020. Affirmed.
Submitted by the parties for summary disposition under K.S.A. 2019 Supp. 21-6820(g) and (h).
Before GREEN, P.J., ATCHESON and BRUNS, JJ.
PER CURIAM: In these consolidated cases, Bryan L. Green Jr. appeals following
the district court's revocation of his probation and imposition of his underlying sentences.
We granted Green's motion for summary disposition in lieu of briefs pursuant to Kansas
Supreme Court Rule 7.041A (2020 Kan. S. Ct. R. 47). On appeal, Green does not
challenge the revocation of his probation. Rather, he contends that the district court
abused its discretion by requiring him to serve his underlying sentences after his
probation was revoked. Specifically, Green argues that the district court should have
reinstated his probation because there are treatment options for drug addiction treatment
and family support available to him. Under the circumstances presented, we conclude that
the district court did not abuse its discretion in ordering Green to serve his underlying
sentences. Thus, we affirm.
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FACTS
On April 6, 2018, in Reno County case No. 15 CR 157, Green pleaded guilty to
possession of methamphetamine with intent to sell, possession of drug paraphernalia with
intent to distribute, possession of marijuana, possession of drug paraphernalia,
interference with law enforcement, aggravated false impersonation, and identity theft. As
a result, the district court found him to be guilty. In addition, Green pleaded guilty to
failure to register as a drug offender—and was found guilty by the district court—in Reno
County case No. 16 CR 360.
On June 29, 2018, the district court sentenced Green to a total prison term of 92
months and 36 months of postrelease supervision in case No. 15 CR 157. At the same
hearing, the district court also sentenced Green to a prison term of 43 months and 24
months postrelease supervision in case No. 16 CR 360. However, the district court
graciously granted Green downward dispositional departures to 36 months of probation
in case No. 15 CR 157 and to 24 months of probation in case No. 16 CR 360.
On February 14, 2019, Green admitted that he had violated the terms of his
probation by using and testing positive for methamphetamine. He waived his right to a
hearing and served a 60-day jail sanction. Less than a year later, on October 1, 2019, the
State moved to revoke Green's probation for various reasons, including testing positive
for methamphetamine, association with persons engaged in illegal drug use, and
committing the new crime of possession of a firearm by a felon. At a hearing held on
October 8, 2019, the State presented evidence of the alleged probation violations and
after considering the evidence, the district court revoked Green's probation. The district
court then turned to the issue of disposition.
The State asked the district court to impose the underlying sentences. In support of
its position, the State noted Green's 31 prior convictions—most of which were drug
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related—as well as his commission of a new crime. The State also pointed out that Green
continued to associate with known drug offenders and that he had repeatedly failed to
address his substance abuse issues while on probation. However, Green asked the district
court to reinstate his probation. In support of his position, Green noted that he had
accepted responsibility for his continued drug use and for having shot guns despite being
a convicted felon. In addition, Green asserted that he relapsed after learning about the
violent death of one of his sisters. Finally, Green acknowledged that he was suffering
from a drug problem and stated that he wanted to receive treatment.
Ultimately, the district court decided to remand Green to the custody of the Kansas
Department of Corrections to serve his underlying sentences. In reaching this decision,
the district court found:
"Mr. Green, if it had just been, just your own use, I would be a lot more
sympathetic because what happened to your sister is horrible and I can't imagine dealing
with that, the grief. But the fact that you—I just, I cannot give you grace, I guess, on the
association with all of the firearms and, and just shooting them apparently. The fact that
nobody was hurt, no animals were hurt, is pretty remarkable. And it just was too
dangerous a situation and you, you are lucky to have your sister, and I'm sure she will be
there for you when you get done here. You will still be young. You'll still have the
opportunity to say, that was then and this is now, and I'm going to be a different person.
You're obviously well-spoken and intelligent. That's a lot going for you as you try to
construct a life. But I just can't—well, you need to serve these sentences and the
controlling is 15 CR 157, the 83 months."
Subsequently, Green filed a timely notice of appeal in the two cases. At Green's
request, we consolidated the appeals because they involve common issues of law and
fact. We also granted Green's request for summary disposition of his appeal.
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ANALYSIS
On appeal, Green contends that the district court abused its discretion by requiring
him to serve his underlying sentences following the revocation of his probation. Judicial
discretion is abused only if (1) no reasonable person would take the view adopted by the
district court; (2) it is based on an error of law; or (3) it is based on an error of fact. State
v. Schaal, 305 Kan. 445, 449, 383 P.3d 1284 (2016). The party asserting the district court
abused its discretion—in this case Green—bears the burden of showing such abuse of
discretion. State v. Smith-Parker, 301 Kan. 132, 161, 340 P.3d 485 (2014).
Unless otherwise required by law, probation is granted as a privilege and not as a
matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Based on the
severity level of Green's offenses and his criminal history score, the relevant sentencing
guidelines called for the imposition of a presumptive prison sentences. See K.S.A. 2019
Supp. 21-6804 (sentencing grid for nondrug crimes); K.S.A. 2019 Supp. 21-6805
(sentencing grid for drug crimes). However, the district court showed him mercy and
granted him probation in both cases.
Based on our review of the record on appeal, we conclude that the district court
did not abuse its discretion in imposing Green's underlying sentences after revoking his
probation. A review of the record shows that Green was given multiple opportunities to
change the direction of his life on probation. Instead of taking advantage of these
opportunities, Green continued to use drugs and to commit new crimes. We also note that
the district court had already imposed the statutory intermediate sanctions the first time
that he violated the terms of his probation. Under these circumstances, the district court
was well within its discretion to impose Green's underlying sentences. See K.S.A. 2019
Supp. 22-3716(c)(7)(C); see State v. Skolaut, 286 Kan. 219, 227-29, 182 P.3d 1231
(2008).
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In summary, we find the district court's decision to require Green to serve his
underlying sentences to be reasonable. Likewise, we do not find that the district court
made an error of law or fact. Accordingly, we conclude that the district court did not
abuse its discretion and affirm its decision.
Affirmed.
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