State v. Dunn ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,265
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
GARRETT W. DUNN,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; ERIC WILLIAMS, judge. Opinion filed April 10, 2020.
Affirmed.
Submitted for summary disposition pursuant to K.S.A. 2019 Supp. 21-6820(g) and (h).
Before MALONE, P.J., LEBEN AND POWELL, JJ.
PER CURIAM: Garrett Dunn received probation after serving the jail portion of his
sentence for a driving-under-the-influence conviction. Dunn admitted to violating his
probation conditions by testing positive for alcohol use. The judge imposed a 34-day jail
sanction and continued Dunn's probation with increased drug-and-alcohol treatment. On
appeal, Dunn challenges the district court's decision to impose a jail sanction. But Dunn
agreed with the State's recommendation to impose the sanction, so he is precluded from
objecting to it on appeal. And even if he could object, the decision to impose the sanction
was within the district court's discretion once a violation had been established. On the
facts here, we find no abuse of discretion in imposing the sanction.
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ANALYSIS
Dunn argues on appeal that the district court abused its discretion when it imposed
a 34-day jail sanction that wasn't designed to address the cause of his probation violation,
his alcoholism.
Before we address that argument, the State says Dunn is barred from raising it
because he agreed with the State's recommendation on how to resolve the probation
violation. The State's argument invokes the invited-error doctrine, which prevents a party
from complaining on appeal about an alleged error that the party invited in the district
court. Whether the doctrine applies is a legal question over which we exercise unlimited
review. A party doesn't invite error by simply acquiescing in some action taken by the
district court; the party must actively pursue what it later claims is error on appeal. State
v. Sasser, 305 Kan. 1231, 1235-36, 391 P.3d 698 (2017).
Dunn did more than acquiesce in the State's recommendation that the court treat
the 34 days he spent in jail as a sanction—he affirmatively asked the court to follow that
recommendation. Now he claims on appeal that the district court erred by imposing a
sanction because it wasn't related to addressing his alcohol problem. But since he asked
the court to impose this sanction, Dunn cannot object to its imposition on appeal because
he invited any error in the district court.
Even if we considered Dunn's argument, it would still fail. The legal rules
applicable to Dunn's argument are straightforward. The district court's decision to impose
a sanction must be based on a factual finding that a condition of probation has been
violated. Once a violation has been established, the decision of whether that violation
warrants revocation or some other sanction is within the discretion of the district court.
State v. Skolaut, 286 Kan. 219, Syl. ¶ 4, 182 P.3d 1231 (2008). Unless the district court
has made a legal or factual error, we may find an abuse of discretion only when no
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reasonable person would agree with the decision made by the district court. State v.
Jones, 306 Kan. 948, Syl. ¶ 7, 398 P.3d 856 (2017).
That discretion is limited by the statute governing probation revocation, which has
a specific provision for DUI offenses like Dunn's. K.S.A. 2019 Supp. 22-3716. Under the
DUI provision in effect at the time, the district court had three options after finding that
Dunn had violated his probation. It could (1) continue or modify probation and impose up
to a 60-day jail sanction, (2) impose a two- or three-day intermediate jail sanction, or (3)
revoke probation and require that Dunn serve the imposed or a lesser sentence. K.S.A.
2019 Supp. 22-3716(b)(3)(B)(i)-(iii). Here, the district court went with the first option—it
modified Dunn's probation conditions by requiring more drug-and-alcohol treatment, and
it imposed a 34-day jail sanction.
Since the district court followed the statute, there was no legal error in its decision
to impose a 34-day jail sanction. Dunn has alleged no factual error, so he must show that
the decision to impose the jail sanction was unreasonable. He says that it was because the
jail sanction wasn't related to addressing his alcoholism, the cause of the probation
violation.
But we find nothing unreasonable about the district court's decision. The jail
sanction reflected the 34 days Dunn had spent in county jail since his arrest for the
probation violation. Dunn cites no authority stating that the district court could only
impose that jail sanction if its purpose was to address the reason for his violation. And
even if that were required, the other dispositions ordered by the district court were
designed to treat his alcohol problem. The court modified his probation by increasing
drug-and-alcohol treatment. The purpose of that measure was to address his alcoholism
and ensure that he received proper treatment. . Under the circumstances, there is nothing
unreasonable about the district court's decision to impose a 34-day jail sanction for the
probation violation; the district court did not abuse its discretion.
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On Dunn'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 (2019 Kan. S. Ct. R.
47). We have reviewed the record available to the sentencing court, and we find no error
in its decision to revoke Dunn's probation.
We affirm the district court's judgment.
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