State v. Deere ( 2021 )

NOT DESIGNATED FOR PUBLICATION
Nos. 123,257
123,258
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DARREL G. DEERE,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court, KEVIN J. O'CONNOR, judge. Opinion filed August 27,
2021. Affirmed.
Kasper Schirer, of Kansas Appellate Defender Office, for appellant.
Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before BRUNS, P.J., GARDNER and CLINE, JJ.
PER CURIAM: Darrel G. Deere appeals the district court's imposition of his
original 49-month prison sentence after he admitted to probation violations and
committed new crimes. Deere contends that the district court abused its discretion by
imposing his original prison sentence and denying his motion for a sentence
modification. Because the district court complied with the law and did not act
unreasonably, we affirm.
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Factual and Procedural Background
Deere entered into a global plea agreement that resolved two cases. He pleaded
guilty in case No. 17CR2695 to fleeing or attempting to elude an officer and felony theft,
and he pleaded guilty in case No. 18CR215 to possession of methamphetamine. As part
of the plea agreement, the State dismissed all remaining charges and dismissed a third
case against Deere. The district court sentenced him to 49 months in prison and then
granted Deere's motion for a dispositional departure, suspended the sentence, and
imposed 12 months of probation.
Deere's compliance with the terms of his probation was short-lived. One month
after sentencing, Deere served a two-day jail sanction because he had violated his
probation by failing to complete a drug and alcohol assessment. One month later, the
district court issued a warrant for Deere that alleged he had violated his probation by
• testing positive for methamphetamine,
• failing to attend office visits, and
• failing to attend outpatient treatment.
The district court issued a second warrant after the State charged Deere with new
crimes in a separate case (19CR28).
At a later hearing on the State's motion to revoke Deere's probation, Deere
admitted he had committed the violations alleged in the first warrant and pleaded no
contest to the new crimes alleged in the second warrant. The district court found Deere
had violated the terms of his probation but continued disposition pending the outcome of
19CR28.
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A jury later convicted Deere in 19CR28 of traffic offenses and
• two counts of aggravated assault on a law enforcement officer,
• one count of interference with a law enforcement officer,
• one count of fleeing or attempting to elude a law enforcement officer, and
• one count of criminal damage to property.
The district court then reconvened the probation revocation hearing. Deere
requested drug treatment through residential community corrections or a reduced prison
sentence, but the district court found no reason to modify the original prison sentence.
The district court found that Deere had violated the terms of his probation in multiple
ways including by committing new crimes while on probation, so it revoked Deere's
probation and imposed his original 49-month prison sentence.
Deere timely appeals.
Analysis
Deere concedes that the district court had the authority to revoke his probation and
impose his original sentence. See K.S.A. 2017 Supp. 22-3716(c)(8)(A). He argues only
that the district court abused its discretion by unreasonably imposing his original prison
sentence instead of a modified sentence.
That statute provides that the district court may order the defendant to serve the
original sentence or any lesser sentence when it revokes the defendant's probation
because the defendant has committed a new crime while on probation.
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"The use of the permissive term 'may' in the statute signals that the district court has
discretion to either grant or deny a defendant's request for a lesser sentence upon the
revocation of probation. Thus, . . . an appellate court reviews such a decision made by the
district court for an abuse of discretion." State v. Reeves, 54 Kan. App. 2d 644, 648, 403
P.3d 655 (2017).
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). The party alleging that the district
court abused its discretion carries the burden of showing the abuse of discretion. State v.
Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018). Deere invokes only the first of these,
contending that the district court unreasonably imposed the original sentence without
modification.
Deere argues that the district court could have imposed intermediate sanctions and
could have reduced his 49-month prison sentence. And Deere argues that the district
court should have done so because of his substance abuse issues, treatment needs, and
incarceration costs. The district court acknowledged Deere's struggles with substance
abuse, yet it found that Deere had failed to attend drug treatment as directed and had
failed to complete any community service work as directed. Deere had numerous other
failures on probation, and the prior sanction imposed by the district court did nothing to
modify his behavior. Deere has failed to show that the district court's imposition of the
original sentence was a decision with which no reasonable person would agree, so we
find no abuse of discretion.
Affirmed.
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