State v. McCovery

NOT DESIGNATED FOR PUBLICATION
Nos. 121,413
121,414
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
VERNON LAMONTE MCCOVERY,
Appellant.
MEMORANDUM OPINION
Appeal from Labette District Court; FRED W. JOHNSON JR., judge. Opinion filed February 19,
2021. Affirmed.
Submitted by the parties for summary disposition under K.S.A. 2020 Supp. 21-6820(g) and (h).
Before GREEN, P.J., MALONE and WARNER, JJ.
PER CURIAM: Vernon Lamonte McCovery appeals the district court's decision
revoking his probation and ordering him to serve his original prison sentences in two
consolidated cases. We granted McCovery's motion for summary disposition under
Kansas Supreme Court Rule 7.041A (2020 Kan. S. Ct. R. 47). The State has filed no
response. Finding no error, we affirm the district court's judgment.
In 14CR288, McMovery was convicted of criminal threat and was sentenced to 12
months' imprisonment with 12 months' probation. In 15CR55, McCovery was convicted
of criminal threat and stalking and received a controlling sentence of 18 months'
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imprisonment with 12 months' probation. The sentences were ordered to run
consecutively.
McCovery performed poorly on probation and his supervision was extended many
times. The record reflects that he received at least one 2-day quick-dip jail sanction and a
120-day prison sanction. In July 2018, McCovery moved to Alabama and his probation
was transferred there by interstate compact. McCovery did not report to his Alabama
probation officer in October or November 2018. The Alabama probation officer sent a
case closure notice, stating McCovery had absconded.
McCovery was arrested on a warrant on January 25, 2019, and he was returned to
Kansas. On May 7, 2019, the district court found McCovery had violated the terms of his
probation by absconding. Noting that McCovery had received two prior intermediate
sanctions, the district court revoked his probation and ordered him to serve his original
sentence in each case. McCovery timely appealed the district court's judgment.
On appeal, McCovery claims the district court "erred in revoking his probation
and imposing the underlying prison sentence." Generally, once there has been evidence
of a violation of the conditions of probation, the decision to revoke probation rests in the
district court's sound discretion. State v. Coleman, 311 Kan. 332, 334, 460 P.3d 828(2020). An abuse of discretion occurs when judicial action is arbitrary, fanciful, or
unreasonable; is based on an error of law; or is based on an error of fact. State v.
Gonzalez-Sandoval, 309 Kan. 113, 126-27, 431 P.3d 850 (2018). The party asserting the
district court abused its discretion bears the burden of showing such an abuse of
discretion. State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).
The procedure for revoking McCovery's probation is governed by K.S.A. 2018
Supp. 22-3716. This statute provides that once a defendant has violated the conditions of
probation, the district court must apply a series of intermediate sanctions before revoking
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probation, including a quick dip jail sanction and a prison sanction. K.S.A. 2018 Supp.
22-3716(c)(1)(A)-(E). McCovery makes no claim that he did not receive the appropriate
intermediate sanctions before the district court revoked his probation. He also does not
challenge the district court's finding that he absconded. The district court gave McCovery
many chances to succeed on probation, including a chance to move to Alabama, but he
squandered those opportunities. The district court's decision to revoke McCovery's
probation was not arbitrary, fanciful, or unreasonable, and it was not based on an error of
fact or law. McCovery has failed to show that the district court abused its discretion by
revoking his probation and ordering him to serve his original prison sentences.
Affirmed.
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