State v. Anzek

NOT DESIGNATED FOR PUBLICATION
No. 122,260
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
LANDON ALAN ANZEK,
Appellant.
MEMORANDUM OPINION
Appeal from Johnson District Court; THOMAS KELLY RYAN, judge. Opinion filed August 28,
2020. Affirmed.
Submitted by the parties for summary disposition pursuant to K.S.A. 2019 Supp. 21-6820(g) and
(h).
Before GREEN, P.J., ATCHESON and BRUNS, JJ.
PER CURIAM: Landon Alan Anzek appeals the district court's decision to revoke
his probation. We granted Anzek's motion for summary disposition under Supreme Court
Rule 7.041A (2020 Kan. S. Ct. R. 47). After a review of the record, we affirm.
This is the second time Anzek has appealed his probation revocation. The opinion
in his first appeal summarizes the pertinent facts preceding the first probation revocation
hearing:
"In accordance with a plea agreement, Anzek pleaded guilty to burglary, criminal
use of a financial card, and two counts of theft. Because his criminal history score was A,
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Anzek faced a presumptive prison sentence. But the State recommended a dispositional
departure to probation as part of the plea agreement. The court sentenced Anzek to 32
months in prison, but it granted the dispositional departure and placed him on probation
for 24 months. With Anzek's consent, the court, in January 2015, extended his probation
term for one year.
"Then, in April 2015, the State asked the court to revoke Anzek's probation
alleging that he failed to report on several days, failed to make any payments on his
court-ordered costs, and used alcohol and drugs. Anzek stipulated to violating his
probation and the district court imposed a three-day 'quick dip' jail sanction.
"Once again, this time in December 2015, the State sought to revoke Anzek's
probation, alleging that he violated the conditions of his probation by:
• failing to attend a preemployment class or meet with his intensive
supervision officer as scheduled;
• failing to attend therapy classes;
• failing to pay court fines/fees since July 2015;
• failing to report for drug and alcohol testing;
• testing positive for using amphetamine, methamphetamine, and cocaine."
State v. Anzek, No. 118,461, 2018 WL 5851517, at *1 (Kan. App. 2018)
(unpublished opinion).
The district court held a probation violation hearing during which Anzek
stipulated to violating his probation. After considering its options, the district court chose
to revoke Anzek's probation and impose his original prison sentence. It relied on the
public safety exception to bypass intermediate sanctions. Anzek appealed, arguing that
the district court failed to make particularized findings in support of the exception as
required by K.S.A. 2015 Supp. 22-3716(c)(9). This court agreed. It vacated the order
imposing Anzek's prison sentence and remanded for the district court to either impose an
intermediate sanction or set forth with particularity its reason for invoking an exception
as K.S.A. 2015 Supp. 22-3716(c)(9) required. Anzek, 2018 WL 5851517, at *4.
On remand, the district court provided the following reasons to support its use of
the public safety exception:
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• Anzek's failure to report or attend court-ordered sessions,
• that his whereabouts were unknown for at least a week,
• his failure to pay court costs and restitution,
• his failure to remaining drug free,
• his criminal history of category A,
• his conviction for an aggravated burglary that he pled down to a
residential burglary, and
• his five convictions from 2009 for aggravated assault.
It also noted that imposing an intermediate sanction at the time of the first
probation violation hearing would have been ineffective.
Next, the court asserted that history is the best prognosticator of future actions and
that while Anzek was not reporting he was doing drugs and engaging in other criminal
activity. Finally, the court reiterated that Anzek was a public safety risk for not following
through on probation, using a firearm in an aggravated robbery, and committing an
aggravated burglary.
Based on these facts, the court determined that the public safety exception applied
and allowed the court to bypass intermediate sanctions. It decided using this exception
was appropriate for Anzek and ordered him to serve his prison sentence. Anzek timely
appealed the district court's decision.
Once a violation of probation is established, revocation of probation is in the
discretion of the district court. See State v. Skolaut, 286 Kan. 219, 227-28, 182 P.3d 1231
(2008); see also State v. Clapp, 308 Kan. 976, 985, 425 P.3d 605 (2018) (finding that
discretion of court is subject to K.S.A. 2014 Supp. 22-3716). A court abuses judicial
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discretion if the action is arbitrary, fanciful, or unreasonable; based on an error law; or
based on an error fact. Unreasonable means that "no reasonable person would have taken
the view adopted by the trial court." State v. Jones, 306 Kan. 948, Syl. ¶ 7, 398 P.3d 856
(2017). Anzek bears the burden to show that the court's action was an abuse of discretion.
See State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018).
Anzek argues revoking probation and imposing his prison sentence was
unreasonable given that less severe intermediate sanctions were available and that he had
shown an ability to comply with the terms of probation. He does not assert that the
district court failed to make particularized findings.
Anzek fails to satisfy his burden to show that no reasonable person would have
chosen to impose the prison sentence over imposing an intermediate sanction. The court
provided a detailed recitation supporting its decision to impose the underlying prison
sentence including: Anzek's serious criminal history score of A, including five
aggravated assaults from 2009; he disappeared for a week during probation; and he had
violated multiple conditions of his probation, including the commission of new crimes. In
addition to being particularized, those findings and the facts supporting them are more
than enough to warrant Anzek serving his prison sentence rather than being continued on
probation with an intermediate sanction. We find no abuse of discretion in that call—
other district courts would have done the same.
Choosing between two options, as long as both options are available, is the
epitome of discretion. Anzek fails to show that no reasonable person would have chosen
the prison sentence over intermediate sanctions. For this reason, we affirm the district
court.
Affirmed.
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