State v. Jackson ( 2021 )

NOT DESIGNATED FOR PUBLICATION
Nos. 122,851
122,852
122,853
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
MILES VAN JACKSON,
Appellant.
MEMORANDUM OPINION
Appeal from Barton District Court; CAREY L. HIPP, judge. Opinion filed January 29, 2021.
Affirmed in part and reversed in part.
Submitted by the parties for summary disposition pursuant to K.S.A. 2019 Supp. 21-6820(g) and
(h).
Before MALONE, P.J., HILL and BUSER, JJ.
PER CURIAM: On Miles Van Jackson's motion, we accepted this appeal for
summary disposition under K.S.A. 2019 Supp. 21-6820(g) and (h) and Supreme Court
Rule 7.041A (2020 Kan. S. Ct. R. 47). He appeals the district court's decision revoking
his probation and sending him to prison after he violated probation in three separate
cases.
While he does not challenge the district court's finding that he violated his
probation, instead, he does argue that because his underlying problems relate to substance
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abuse, the court should have given him another chance on probation so that he could
receive treatment. In his view, this was an abuse of discretion by the district court and he
asks us to reverse that decision. We find no abuse of discretion in revoking Jackson's
most recent probation order. But we do find error in the court not considering an
intermediate sanction before revoking his probation in his two earlier convictions.
Jackson committed his first crime in July 2015, his second crime in May 2017, and
his third crime in October 2018. Those dates are important because according to our
Supreme Court's recent decision in State v. Coleman, 311 Kan. 332, 337, 460 P.3d 828(2020), the probation revocation scheme that applies when a court is considering
revocation, is the one in effect when the crime of conviction was committed. Most of the
statutory provisions relevant to this appeal are the same in all three cases, so we focus on
the language in K.S.A. 2018 Supp. 22-3716.
Under that statute, a district court had to impose intermediate sanctions before
revoking probation and imposing the prison sanction. The first intermediate sanction
consisted of a two- or three-day period in jail. K.S.A. 2018 Supp. 22-3716(c)(1)(B). After
that sanction, the court could order the probationer to serve 120 or 180 days in prison.
K.S.A. 2018 Supp. 22-3716(c)(1)(C)-(D). But in 2017, the Legislature added an
exception if the court had granted a dispositional departure and placed the defendant on
probation when the presumptive guidelines sentence had been prison; in that case, the
court had the discretion to revoke probation without first imposing the intermediate
sanction. K.S.A. 2018 Supp. 22-3716(c)(9)(B).
That exception applied in one of Jackson's cases. Jackson's presumptive sentence
for his methamphetamine conviction in case 18-CR-462 was between 37 to 42 months in
prison. In that case, the district court granted a dispositional departure and placed Jackson
on probation instead. Thus, when the district court found that Jackson had violated his
probation in that case—a finding that he does not challenge on appeal—it had the
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discretion to revoke his probation without imposing any intermediate sanctions. That
means we must examine the record for an abuse of discretion in the 2018 case.
The rules about an abuse of discretion in this context are well established. Unless
the court based its decision on a factual or legal error (which is not claimed here), we
reverse only if no reasonable person would agree with the district court's decision. State
v. Brown, 51 Kan. App. 2d 876, Syl. ¶ 4, 357 P.3d 296 (2015).
We hold that a reasonable person could agree with the court's decision to revoke
probation in the 2018 case. The court acknowledged that Jackson had a drug addiction
and would benefit from treatment—indeed, that was a reason the court had placed
Jackson on probation in the first place rather than send him to prison. But the court found
that continuing probation was not a good option for Jackson because he had continued to
use drugs over the course of his probation and had failed to complete substance abuse
treatment. Despite several opportunities, Jackson had not changed his behavior. Thus, we
find no error in the district court's decision to revoke Jackson's probation and impose his
underlying prison sentence in case 18-CR-462.
We turn to Jackson's probation in his earlier two cases. In 17-CR-204, Jackson's
presumptive sentence for his aggravated battery conviction was between 27 to 31 months
in prison. The district court granted a dispositional departure and placed Jackson on
probation instead. In Coleman, the Kansas Supreme Court held that the dispositional
departure exception did not become effective until July 1, 2017 and does not apply
retroactively. Coleman, 311 Kan. at 332-33, 337. Because Jackson committed the crime
in 17-CR-204 before July 2017, the exception does not apply.
In 16-CR-66, the court did depart from the sentencing guidelines on one count—a
durational departure, not a dispositional departure— but did not depart on the second
count. This means the exception that would allow the avoidance of the consideration of
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intermediate sanctions does not apply. The statute excepted dispositional departure
sentences, not durational departures. Jackson was convicted in that case of aggravated
battery and interference with law enforcement. His presumptive sentence in the
aggravated battery case was between 27 months and 31 months in prison. The district
court granted a durational departure for that offense and imposed a 10-month prison
sentence. His presumptive sentence for the interference charge was 24 months of
probation with a prison sentence of 5 to 7 months. The court granted probation on that
count along with a six-month prison sentence. Jackson has served the 10-month prison
sentence for the aggravated battery conviction and then began to serve probation for the
interference charge. Jackson challenges the revocation of that probation in this case.
We hold that the district court had no authority to revoke Jackson's probation in
17-CR-204 and 16-CR-66 without first imposing intermediate sanctions. See K.S.A. 2016
Supp. 22-3716(c)(1)(B)-(E). Jackson did serve jail sanctions for prior violations, but the
court had never imposed a 120-day or 180-day prison sanction under K.S.A. 2018 Supp.
22-3716(c)(1)(C)-(D). Thus, the district court erred by revoking probation in those cases.
In this summary disposition of a sentencing appeal, we have reviewed the record
available to the sentencing court, and we find no error in its decision to revoke Jackson's
probation in 18-CR-462. But we find that the court erred in revoking probation in 17-CR-
204 and 16-CR-66, so we remand to the district court with instructions to consider
imposing an appropriate intermediate sanction.
Affirmed in part and reversed in part.
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