State v. Johnson ( 2021 )

NOT DESIGNATED FOR PUBLICATION
Nos. 123,415
123,416
123,417
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ELI H. JOHNSON,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Opinion filed June 18, 2021.
Affirmed.
Submitted by the parties for summary disposition pursuant to K.S.A. 2020 Supp. 21-6820(g) and
(h).
Before WARNER, P.J., BUSER and CLINE, JJ.
PER CURIAM: The district court placed Eli H. Johnson on probation after he pled
guilty in three criminal cases. On October 2, 2020, the district court revoked Johnson's
probation and imposed the underlying sentences. Although Johnson candidly concedes
the district court's revocation of probation was without legal or factual error, he contends
the court abused its discretion by ordering his imprisonment because "[g]iven the
underlying addiction issues, the better alternative was treatment."
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We granted Johnson's motion for summary disposition in lieu of briefs as provided
under Supreme Court Rule 7.041A (2021 Kan. S. Ct. R. 48). The State does not contest
the summary disposition but argues that Johnson "has failed to present any compelling
facts to support a finding that the district court abused its discretion." Upon our review,
we agree with the State and affirm the district court.
FACTUAL AND PROCEDURAL BACKGROUND
Johnson pled guilty in case No. 19CR744 on November 22, 2019, to possession of
methamphetamine, committed on February 7, 2019. Before sentencing, however, the
State charged Johnson in two more criminal cases. In case No. 19CR3646, Johnson pled
guilty to criminal possession of a firearm by a convicted felon. In case No. 20CR157,
Johnson pled guilty to possession of methamphetamine, criminal possession of a firearm
by a convicted felon, and an aggravated weapons violation by a convicted felon,
committed on June 4, 2019. All three criminal cases were resolved by plea agreements
with the State.
Sentencing on all three criminal cases occurred on May 28, 2020. Johnson's
criminal history score was A. The district court followed the plea agreements and granted
Johnson a dispositional departure to probation in all three cases. In total, Johnson was
sentenced to a controlling term of 102 months' imprisonment but granted probation for 18
months.
Johnson was not successful on probation, and the district court held a probation
revocation hearing on all three cases on October 2, 2020. At the evidentiary hearing, the
district court found, by a preponderance of the evidence, that Johnson illegally possessed
methamphetamine on May 29, 2020, one day after being placed on probation.
Consequently, the district court revoked Johnson's probation and imposed the underlying
sentences.
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Johnson timely appeals.
ANALYSIS
Johnson does not challenge the district court's finding that he violated his
probation by possessing methamphetamine or argue that the court lacked the statutory
authority to order incarceration under the circumstances. Instead, Johnson contends the
district court abused its discretion when it ordered him to serve his underlying sentences
instead of reinstating probation and ordering drug abuse treatment.
An appellate court reviews the propriety of a probation revocation by a district
court for abuse of discretion. State v. Coleman, 311 Kan. 332, 334, 460 P.3d 828 (2020).
Judicial discretion is abused if the decision is (1) arbitrary, fanciful, or unreasonable; (2)
based on a legal error; or (3) based on a factual error. State v. Gonzalez-Sandoval, 309
Kan. 113, 126-27, 431 P.3d 850 (2018). The party alleging an abuse of discretion has the
burden of proving its existence. See State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425(2011). In this appeal, Johnson is claiming the district court's imposition of the sentences
upon the revocation of probation was arbitrary, fanciful, or unreasonable.
Of note, the district court may bypass statutory sanctions and impose an offender's
underlying sentence when the offender commits a new felony while on probation. K.S.A.
2018 Supp. 22-3716(c)(8)(A). Here, the district court revoked Johnson's probation and
imposed the underlying sentences because Johnson committed a new felony while on
probation.
In revoking Johnson's probation and ordering incarceration, the district judge said:
"These crimes may be meth induced and a drug substance problem, but meth is
an extremely dangerous drug, and individuals under the influence of methamphetamine
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do stupid things. I granted Mr. Johnson a dispositional departure sentence. And within—
actually, I sentenced him on May 28th. And I must have had quite an impression on him,
because the next day he was taken into custody, based upon the evidence that was
presented at this hearing, the next day, with a 102-month sentence hanging over his head.
And that's how Mr. Johnson returned the Court's decision to—well, that's what he did in
return for the Court's decision to grant a dispositional departure sentence.
"I agree with Community Corrections that Mr. Johnson is not amenable to
probation. He doesn't deserve—and I'll tell you what. I'm not taking into account an
argument that he possessed a weapon, that there is a violation of a criminal possession of
a firearm. I'm not taking—not even taking that into account, which the Court has the
ability to do because I can decide what I rely upon when I make a decision. I'm just
making a finding that the allegation was that he was in possession of a knife. He was. But
I'm not letting that factor into the decision here.
"Mr. Johnson's probation in these three cases is going to be revoked because he
committed a felony, possession of methamphetamine, while he was on probation. He
committed that the very next day that he was sentenced in this case. He has clearly
demonstrated with his criminal behavior that he is not amenable to probation. And he is
not deserving of any intermediate sanctions."
We agree with the district court. Although Johnson argues the district court abused
its discretion by imposing incarceration rather than ordering drug treatment, the record is
clear that while Johnson was afforded the opportunity under terms of his probation to
obtain drug treatment, he did not avail himself of that opportunity. Instead, despite having
accrued the most serious criminal history score possible and facing the prospect of 102
months imprisonment—yet obtaining dispositional departures to probation—Johnson
promptly violated his probation by committing a felony drug offense. All things
considered, a reasonable person could agree with the district court that Johnson was not
amenable to probation and, as a result, merited imposition of his underlying sentences.
Affirmed.
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