State v. Potter ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,912
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DOUGLAS WAYNE POTTER SR.,
Appellant.
MEMORANDUM OPINION
Appeal from Shawnee District Court; PENNY R. MOYLAN, judge. Opinion filed June 4, 2021.
Affirmed.
Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.
Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee.
Before GREEN, P.J., SCHROEDER, J., and WALKER, S.J.
PER CURIAM: Douglas Wayne Potter Sr. appeals from the district court's decision
to revoke his probation and impose his underlying jail sentence of four months. He
argues the district court abused its discretion in revoking his probation. After a complete
review of the record, we find no abuse of discretion by the district court, and we affirm.
1
FACTS
In April 2019, Potter pled no contest to and was convicted of domestic battery
against his wife. The district court sentenced Potter to 4 months in the Shawnee County
jail but suspended his jail sentence and imposed 12 months of supervised probation.
Potter signed an order of probation acknowledging, among other things, he was
prohibited from contacting his wife and from violating any federal, state, or local laws.
In January 2020, the State moved to revoke Potter's probation. At the revocation
hearing, Potter's probation officer testified Potter failed to take a urinalysis test in
December 2019 and was arrested a second time for domestic battery of his wife. Topeka
Police Officer Devon Long corroborated the probation officer's testimony. Long stated he
was dispatched to the residence on December 27, 2019, and found Potter there. Potter's
wife was visibly upset because Potter had tased her. Long placed Potter under arrest.
The district court revoked Potter's probation and ordered him to serve his
underlying jail sentence for contact with his victim.
Potter argues the district court abused its discretion by revoking his probation and
imposing his underlying jail sentence.
Once the district court has determined the defendant has violated the terms of
probation, the decision to revoke probation lies in the discretion of the district court. State
v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). A judicial action constitutes an
abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on 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). Potter bears the burden of showing an abuse of discretion. See State
v. Thomas, 307 Kan. 733, 739, 415 P. 3d 430 (2018).
2
Potter identifies no error of fact or law underlying the district court's decision.
Potter was prohibited from contact with his wife and from violating any federal, state, or
local laws. Potter was arrested for a new crime—another domestic battery—which
involved his wife, in violation of the terms of his probation. The district court, therefore,
had authority to revoke Potter's probation and impose his underlying jail sentence. See
K.S.A. 2020 Supp. 22-3716(b)(3)(B)(iii).
Potter claims the district court failed to find revocation of his probation was
required to protect the safety of the community or himself. However, Potter's argument is
misplaced. The controlling statute, K.S.A. 2020 Supp. 22-3716(b)(3)(B)(iii), does not
require such findings before the revocation of misdemeanor probation can occur. Potter is
trying to impose conditions reserved for felony probation, and he was not subject to
felony probation at the time his current probation was revoked. Potter has not established
the district court's decision to revoke his probation was arbitrary, fanciful, or
unreasonable. The district court was well within its statutory authority and sound
discretion to revoke Potter's probation and order him to serve his underlying jail sentence.
Affirmed.
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