State v. Greiner

NOT DESIGNATED FOR PUBLICATION
No. 121,994
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
PAUL LOREN GREINER,
Appellant.
MEMORANDUM OPINION
Appeal from Shawnee District Court; JASON GEIER, judge. Opinion filed November 25, 2020.
Affirmed.
Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.
Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., POWELL and GARDNER, JJ.
PER CURIAM: Paul Loren Greiner appeals the district court's revocation of his
probation and imposition of his underlying sentence, arguing the district court abused its
discretion by doing so. We disagree and affirm.
As part of a plea agreement with the State, Greiner pled no contest to one count of
unlawful use of drug paraphernalia, a class B nonperson misdemeanor. On March 1,
2019, the district court sentenced Greiner three months in the county jail but placed him
on probation from that sentence for six months.
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On May 6, 2019, the State sought to revoke Greiner's probation, alleging he had
(1) failed to report; (2) failed to remain drug free; (3) failed to remain law abiding; (4)
failed to notify his probation officer of law enforcement contact; and (5) failed to comply
with treatment recommendations.
At the probation revocation hearing held on June 13, 2019, Greiner stipulated to
failing to report and failing to remain drug free but disputed the other allegations. Based
upon these two stipulations, the district court found Greiner in violation of the terms and
conditions of his probation. The State recommended revocation of his probation and
imposition of the underlying sentence while Greiner asked for reinstatement to probation.
Greiner's probation officer also recommended that Greiner's probation be revoked
because Greiner had never been free of drugs during his time on probation. The district
court revoked Greiner's probation and ordered him to serve his underlying three-month
sentence because it believed jail was Greiner's only chance to be drug free.
On appeal, Greiner argues the district court abused its discretion when it revoked
his probation and ordered him to serve his jail sentence because he claims there is no
evidence that serving his time in jail will keep him drug free. The State contends
Greiner's appeal is moot because he has completed his sentence. Alternatively, it argues
the district court did not abuse its discretion by revoking Greiner's probation and ordering
him to serve his jail sentence.
Once a probation violation is established, the case's disposition lies within the
district court's sound discretion so long as that discretion falls within the parameters of
K.S.A. 2019 Supp. 22-3716. See State v. Skolaut, 286 Kan. 219, 227-28, 182 P.3d 1231(2008). Judicial discretion is abused if the action is (1) one where no reasonable person
would take the district court's view; (2) based on an error of law; or (3) based on an error
of fact. State v. Woodring, 309 Kan. 379, 380, 435 P.3d 54 (2019). Greiner has the
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burden to establish an abuse of discretion. See State v. Anderson, 291 Kan. 849, 855, 249
P.3d 425 (2011).
The State argues this appeal is moot and should be dismissed because Greiner has
served the balance of his sentence. However, an appeal will not be dismissed as moot
unless "it is clearly and convincingly shown the actual controversy has ended, the only
judgment that could be entered would be ineffectual for any purpose, and it would not
impact any of the parties' rights." State v. Tracy, 311 Kan. 605, 608, 466 P.3d 434 (2020);
State v. Roat, 311 Kan. 581, 584, 466 P.3d 439 (2020). Admittedly, the docketing
statement shows Greiner is not incarcerated, and it appears Greiner has likely served his
sentence as of the date of this opinion given it was imposed on June 13, 2019. But no
notice of change of custodial status is present in the record showing Greiner has
completed his sentence. Thus, we choose to resolve this case on the merits because
Greiner's appeal fails anyway.
If the original crime of conviction was a misdemeanor, as is the case here, a
district court has three options at its disposal when an offender violates probation: (1)
continue or modify probation; (2) impose an intermediate two- or three-day jail sanction;
or (3) revoke probation and order the defendant to serve the underlying sentence or any
lesser sentence. K.S.A. 2019 Supp. 22-3716(b)(3)(B). Here, the district court chose
option three—revoking Greiner's probation and ordering him to serve his underlying
sentence.
Greiner acknowledges the district court had the authority to revoke his probation
but argues the decision was unreasonable because the district court was wrong to think
three months in jail would keep him drug free. However, Greiner barely lasted two
months before violating his probation and admitted his failure to remain drug free. At the
probation revocation hearing, the district court explained that it believed Greiner's only
chance to remain drug free was for him to serve his jail term. Greiner's probation officer
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recommended that disposition, telling the district court that Greiner had never been clean
since being placed on probation. Greiner's probation officer believed the only way
Greiner would be drug free was by serving his jail sentence.
In light of this record, Greiner fails to persuade us that no reasonable person would
agree with the district court's decision to revoke Greiner's probation and order him to
serve his three-month jail sentence. We see no abuse of discretion.
Affirmed.
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