State v. Fairchild ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,712
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DEREK JAMES FAIRCHILD,
Appellant.
MEMORANDUM OPINION
Appeal from Dickinson District Court; BENJAMIN J. SEXTON, judge. Opinion filed November 24,
2021. Affirmed.
Submitted by the parties for summary disposition pursuant to K.S.A. 2020 Supp. 21-6820(g) and
(h).
Before BRUNS, P.J., GREEN and ISHERWOOD, JJ.
PER CURIAM: Derek James Fairchild appeals after the district court revoked his
probation and imposed his underlying sentence. Recognizing that the district court has
the discretion to require him to serve his underlying sentence under the circumstances
presented in this case, Fairchild filed a motion for summary disposition instead of briefs
under Kansas Supreme Court Rule 7.041A (2021 Kan. S. Ct. R. 48). The State did not
respond, and we granted Fairchild's motion. As a result, we reviewed the record on
appeal to determine whether the district court erred. Based on our review of the record,
we conclude that the district court did not abuse its discretion in revoking Fairchild's
probation or in requiring him to serve his underlying sentence. Thus, we affirm the
district court's decision.
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FACTS
On January 9, 2019, as part of a plea agreement, Fairchild entered an Alford plea
to one count of aggravated battery. The district court found him guilty of the charge and
sentenced him to an underlying term of 12 months' imprisonment. In addition, the district
court ordered postrelease supervision for a period of 12 months. Even so, the district
court suspended the sentence and granted Fairchild's request for probation.
In September 2019, Fairchild admitted to violating the conditions of his probation
by failing to participate in treatment programs and by failing to report as directed. The
affidavit in support of the revocation also alleged that he became aggressive with his
probation officer two times after testing positive for marijuana. After Fairchild admitted
to the violations, the district court imposed a 60-day jail sanction and extended the
probation term for 24 months.
Less than a year later, the State alleged that Fairchild had once again violated the
conditions of his probation by committing a new crime. Specifically, the affidavit
supporting the State's motion to revoke probation alleged that on July 8, 2020, Fairchild
was convicted of sexual battery in Marshall County. At his probation revocation hearing
on February 17, 2021, Fairchild did not contest the allegation that he had been convicted
of a new crime. Even so, he requested that the district court allow him to remain on
probation after serving a prison sanction.
Fairchild's counsel asserted that her client had recently started to control a mental
health condition with medication. Counsel argued that she did not believe that her client
should be penalized for a condition that he was seeking to resolve. Fairchild's mother
testified that her son was better able to control his emotions since starting the new
medication. She also testified regarding her belief that her son would succeed in
completing probation if he remained on the medication.
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At the conclusion of the hearing, the district court revoked Fairchild's probation
and ordered him to serve his underlying prison sentence. In reaching this decision, the
district court found:
"That's important, because in conjunction with [the aggressive behavior] we now
have an additional crime charged and convicted in Marshall County, that being sexual
battery, which is a similar, at least in the sexual—sexually motivated vein, to the case at
hand here in Dickinson County. The defendant has been on Community Corrections. Has
received one prior revocation. This Court will make the finding that a new crime has been
charged. That Mr. Fairchild is a danger. And the Court finds for the safety, members of
the public, it would be jeopardized if Mr. Fairchild was placed back into population.
"Further, Mr. Fairchild will not be served by an assignment to Community
Corrections, as he's seen—as he has made it clear that he's not an appropriate candidate to
finish that. Based upon the new conviction, based upon the prior indications of escalation,
and the first motion to revoke probation, the Court will find that your probation, Mr.
Fairchild, is revoked."
Thereafter, Fairchild timely filed a notice of appeal.
ANALYSIS
On appeal, Fairchild contends that the district court abused its discretion by
refusing to reinstate his probation for two reasons: (1) his mental health condition could
be better treated in the community; and (2) he had demonstrated his ability to succeed on
probation despite a new misdemeanor conviction. In this case, the district court's decision
to revoke Fairchild's probation and to impose the underlying sentence was discretionary.
See K.S.A. 2020 Supp. 22-3716(c); State v. Coleman, 311 Kan. 332, 334, 460 P.3d 828(2020).
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A district court abuses its discretion only if (1) no reasonable person would take
the view adopted by the district court; (2) it stems from an error of law; or (3) it is based
on an error of fact. State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018). The party
asserting that the district court abused its discretion—in this case Fairchild—bears the
burden of showing such abuse. State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018).
Reviewing the record on appeal in light of these standards, we find no abuse of
discretion.
Although Fairchild argues that the district court's decision to revoke his probation
was unreasonable, the record reveals that he violated his probation more than once and in
multiple ways. Moreover, the district court had already imposed a 60-day jail sanction for
Fairchild's prior violations. Fairchild does not dispute that he was convicted of a new
crime—sexual battery—in July 2020. Under these circumstances, the district court had
the statutory authority to revoke Fairchild's probation and to order him to serve his
original sentence. See K.S.A. 2020 Supp. 22-3716(c)(7)(C).
A review of the record reveals that the State presented substantial evidence upon
which the district court could reasonably conclude that Fairchild not only violated the
terms of his probation by committing a new crime but also that he was not a suitable
candidate for probation. The record reflects that the district court graciously gave
Fairchild the opportunity to succeed on probation. Unfortunately, he failed to do so and
continued to violate the terms of his probation—even after serving an intermediate
sanction.
Like the district court, we find it significant that Fairchild's new crime was similar
to the crime he committed in this case. We also agree with the district court that it is
significant that Fairchild continued to act aggressively while on probation. In light of the
evidence presented regarding Fairchild's multiple violations of the terms of his probation
as well as his conviction of a new crime, we conclude that the district court acted
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reasonably in revoking Fairchild's probation and in requiring him to serve his underlying
sentence. Likewise, we do not find that the district court made an error of law or fact.
Accordingly, we affirm the district court's decision.
Affirmed.
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