State v. McCreary ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,519
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
MATTHEW C. MCCREARY,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed January
29, 2021. Affirmed.
Submitted by the parties for summary disposition pursuant to K.S.A. 2019 Supp. 21-6820(g) and
(h).
Before GARDNER, P.J., SCHROEDER, J., and WALKER, S.J.
PER CURIAM: Matthew C. McCreary's probation was revoked after he admitted to
the continuing use of illegal drugs on multiple occasions. He now appeals, claiming the
district court abused its discretion by failing to use a less restrictive sanction than
ordering him to serve his underlying prison sentence. We granted McCreary's motion for
summary disposition under Supreme Court Rule 7.041A (2020 Kan. S. Ct. R. 47). The
State responded and did not object to summary disposition. Observing no error by the
district court, we affirm.
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FACTS
McCreary pled guilty to two counts of sexual exploitation of a child, a severity
level 5 person felony. Based on his criminal history score of I, the district court made
border box findings at sentencing and sentenced McCreary to 31 months' imprisonment,
suspended to 36 months' probation. Shortly after being placed on probation, McCreary
committed various violations and received a three-day jail sanction. McCreary
subsequently admitted to violating his probation again. The district court revoked
McCreary's probation and ordered him to serve a 180-day jail sanction and enter a
residential treatment program following his release.
Following the completion of his most recent jail sanction, McCreary again
admitted to violating his probation in multiple ways, including the use of
methamphetamine. The district court, upon acceptance of McCreary's admissions,
revoked his probation and ordered him to serve the remainder of his underlying prison
sentence. In doing so, the district court noted McCreary had numerous prior probation
violations and the court had given him several chances to change his behavior by
imposing graduated intermediate sanctions.
ANALYSIS
McCreary on appeal argues the district court abused its discretion by revoking his
probation and imposing his underlying sentence. However, the record reflects during his
probation he received multiple graduated intermediate sanctions upon his admissions to
violating the conditions of his probation. K.S.A. 2019 Supp. 22-3716(c)(1)(C) grants the
district court the authority to revoke McCreary's probation and order him to serve the
remainder of his underlying sentence.
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Once the district court has determined McCreary violated the terms of his
probation, the decision to revoke probation lies in the discretion of the district court. See
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). McCreary bears the burden to establish an abuse of
discretion. See State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011).
McCreary identifies no error of fact or law underlying the district court's decision
to revoke his probation. In light of McCreary's recurring probation violations, it is clear
he was unable to comply with the terms of probation despite being given the opportunity.
As the district court noted, the residential treatment program had the most stringent
supervision of all available options. But even there, McCreary was unable to adhere to
the terms of his probation.
McCreary has not demonstrated the district court's decision was arbitrary, fanciful,
or unreasonable. The district court used its sound discretion when it revoked McCreary's
probation and ordered him to serve the remainder of his underlying prison sentence.
Affirmed.
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