State v. Henderson ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,131
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
PETER W. HENDERSON,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed July 2,
2021. Affirmed.
Submitted by the parties for summary disposition pursuant to K.S.A. 2020 Supp. 21-6820(g) and
(h).
Before GREEN, P.J., SCHROEDER, J., and WALKER, S.J.
PER CURIAM: The trial court placed Peter W. Henderson on probation after he
pleaded guilty to theft for the crime committed in April 2018. On July 15, 2020, the trial
court revoked his probation and imposed his underlying prison sentence. Henderson
appeals, arguing the trial court abused its discretion by imposing his underlying prison
sentence instead of reinstating him on probation. We disagree.
The trial court revoked Henderson's probation after he stipulated to committing a
new crime. The new crime allows a trial court to bypass the statutory graduated
sanctioning scheme. Moreover, Henderson's probation was originally granted as the
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result of a dispositional departure, which also allows a trial court to bypass the statutory
graduated sanctioning scheme. We affirm.
Factual and procedural background
Henderson pleaded guilty to theft on May 15, 2019, under a plea agreement. As
part of the agreement, both parties agreed to recommend a dispositional departure to
probation.
Henderson's criminal history score was A, placing him in presumptive prison on
the sentencing grid. The trial court sentenced Henderson to 17 months' imprisonment,
before granting the departure motion and placing Henderson on 36 months' probation.
On December 9, 2019, the trial court held a probation violation hearing.
Henderson stipulated to violating the conditions of his probation. The trial court
sentenced him to a 3-day quick dip and authorized an additional 18-day jail sanction.
The trial court held another probation violation hearing on July 15, 2020.
Henderson again stipulated to the violations: (1) for not providing proof of completing
his required community service hours each month, (2) for not making the minimum $50
payment each month toward his restitution, and (3) for driving without a license. The trial
court revoked Henderson's probation and imposed his underlying sentence.
Henderson timely appeals.
Revocation of Henderson's probation
Henderson alleges that the trial court abused its discretion when it ordered him to
serve his underlying sentence instead of reinstating him on probation. Henderson does
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not explain why, or in what manner, the trial court's actions constituted an abuse of
discretion.
An appellate court reviews the propriety of a sanction imposed by a trial 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).
A trial court possesses limited authority to revoke an offender's probation and
impose an underlying sentence. As an example, the trial court must exhaust the statutorily
prescribed intermediate sanctions unless an enumerated exception exists to bypass
intermediate sanctions. See State v. Dooley, 308 Kan. 641, 648-49, 423 P.3d 469 (2018).
The trial court revoked Henderson's probation and imposed his underlying
sentence because Henderson failed to provide proof of completing the required amount of
community service and failed to make the minimum payment toward restitution each
month, as well as for being observed driving without a valid license. Henderson
stipulated to those violations. Driving a car without a license is a nonperson
misdemeanor. See K.S.A. 2020 Supp. 8-262(a)(1). A trial court may bypass intermediate
sanctions when an offender commits a new felony or misdemeanor while on probation.
K.S.A. 2017 Supp. 22-3716(c)(8)(A).
By stipulating to driving a car without a license, Henderson admitted to
committing a new misdemeanor while on probation. Although the record does not show
that the State charged Henderson with any crime, a criminal conviction or charge is not
required to revoke probation and impose an underlying sentence under the new crime
exception. See State v. Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.3d 844 (2007). A trial
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court may revoke probation upon a commission of a new crime even if the offender was
charged but later acquitted, or the case is dismissed. 38 Kan. App. 2d at 315. Henderson's
stipulation is sufficient to prove he committed a new crime while on probation. See State
v. Kyles, No. 112,430, 2015 WL 5613265, at *4 (Kan. App. 2015) (unpublished opinion)
(holding defendant's admission he had been "'dealing'" with DUI case while on probation,
along with other, similar testimony, was sufficient to warrant a conclusion that defendant
had committed new felony or misdemeanor while on probation).
Henderson had already received a 72-hour quick dip from the trial court. He
struggled to comply with his probation, culminating in his stipulation to committing a
crime. A reasonable person could agree with the trial court's decision to impose his
underlying sentence.
Also, though not listed in the journal entry, the trial court discussed with
Henderson the fact that his probation was granted as the result of a dispositional
departure. The trial court explained to Henderson that he was given a special chance with
probation. A trial court may bypass intermediate sanctions and impose the underlying
sentence when probation was originally granted as the result of a dispositional departure.
See K.S.A. 2017 Supp. 22-3716(c)(9)(B).
Because the trial court did not abuse its discretion by revoking probation and
imposing Henderson's underlying prison sentence, we affirm.
Affirmed.
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