State v. Bubeck ( 2020 )

NOT DESIGNATED FOR PUBLICATION
Nos. 121,401
121,402
121,403
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JAMIE RACHELLE BUBECK,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; MICHAEL J. HOELSCHER, judge. Opinion filed March 6,
2020. Appeal dismissed.
Submitted by the parties 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: Jamie Rachelle Bubeck appeals the district court's decision to
impose an intermediate 180-day prison sanction after she stipulated to violating the terms
and conditions of her probation. We granted Bubeck's motion for summary disposition
pursuant to Supreme Court Rule 7.041A (2019 Kan. S. Ct. R. 47). The State has
responded by not objecting to summary disposition but asks us to dismiss the appeal as
being moot. After a review of the record, we agree with the State and dismiss the appeal.
1
As part of a plea agreement with the State in 15CR3329, Bubeck pled guilty to a
single count of theft after a prior conviction, a severity level 9 nonperson felony. On
March 21, 2016, the district court sentenced her to 5 months in prison but placed her on
probation from that sentence for a period of 12 months.
On December 6, 2016, the State sought to revoke Bubeck's probation, alleging she
had, among other violations, committed two new crimes of theft. Consequently, she was
charged with two additional counts of theft after a prior conviction in cases 16CR3553
and 16CR3587. Bubeck reached another plea agreement with the State and pled guilty to
the new charges. On February 22, 2017, in 16CR3553, the district court sentenced her to
10 months in prison but placed her on probation for 12 months, while, in 16CR3587, she
was sentenced to 9 months in prison but placed on probation for 12 months. In
15CR3329, Bubeck admitted to the probation violations at a hearing conducted on the
same day as her sentencing, and the district court imposed a two-day jail sanction. The
district court also extended her probation for 12 months.
Over the next several months, Bubeck repeatedly violated the terms of her
probation which frequently consisted of her testing positive for illegal drugs. These
repeated violations resulted in the district court sanctioning her with jail sanctions,
imposing a 120-day prison sanction, and extending her probation term. She was also
referred to the drug court program.
Finally, on May 14, 2019, the State once again sought to revoke Bubeck's
probation on the grounds that, among other violations, she had tested positive for illegal
drugs on more than one occasion. At the May 17, 2019 probation violation hearing,
Bubeck admitted to the violations. The State asked for revocation of Bubeck's probation
and imposition of sentence while Bubeck asked for inpatient treatment. The district court
instead chose to impose a 180-day prison sanction.
2
Bubeck argues on appeal that the district court abused its discretion by imposing
the 180-day prison sanction. Once a probation violation has been established, the decision
to modify the terms of probation is within the sound discretion of the district court. See
State v. Skolaut, 286 Kan. 219, 227-28, 182 P.3d 1231 (2008). Judicial discretion is
abused if the action "(1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable
person would have taken the view adopted by the trial court; (2) is based on an error of
law . . . ; or (3) is based on an error of fact." State v. Jones, 306 Kan. 948, Syl. ¶ 7, 398
P.3d 856 (2017). Bubeck bears the burden to show an abuse of discretion by the district
court. See State v. Rojas-Marceleno, 295 Kan. 525, 531, 285 P.3d 361 (2012).
A district court's discretion concerning the imposition of probation violation
sanctions is limited by the provisions outlined in K.S.A. 2018 Supp. 22-3716. The district
court is required to impose graduated intermediate sanctions before revoking an
offender's probation. See K.S.A. 2018 Supp. 22-3716(c); State v. Huckey, 51 Kan. App.
2d 451, 454, 348 P.3d 997, rev. denied 302 Kan. 1015 (2015). At the time Bubeck
violated the conditions of her probation, intermediate sanctions included a 2- or 3-day
sanction of confinement in a county jail and a 120- or 180-day prison sanction. See
K.S.A. 2018 Supp. 22-3716(c)(1)(B), (C), (D). With some exceptions, a district court
may impose a 120-day prison sanction only after a 2- or 3-day jail sanction was
previously imposed. K.S.A. 2018 Supp. 22-3716(c)(1)(C).
Here, it is undisputed that Bubeck violated the terms of her probation and the
district court had repeatedly imposed the prerequisite 2-day intermediate jail sanction as
well as a 120-day prison sanction. Therefore, the district court had the legal authority to
impose the 180-day prison sanction. However, the State argues the question is moot
because Bubeck has already served her 180-day prison sanction. See State v.
Montgomery, 295 Kan. 837, 844, 286 P.3d 866 (2012). We agree because "[a]n issue is
moot where any judgment of the court would not affect the outcome of the parties'
controversy." Manly v. City of Shawnee, 287 Kan. 63, Syl. ¶ 4, 194 P.3d 1 (2008).
3
Effective July 1, 2019, the Legislature amended K.S.A. 22-3716 and removed the
120-day and 180-day intermediate prison sanction requirements prior to authorizing a
probation revocation. In fact, stints in prison are no longer allowed as probation violation
sanctions. K.S.A. 2019 Supp. 22-3716(c); L. 2019, ch. 59, § 10. In light of the facts that
Bubeck has already served her intermediate prison sanction and the requirement that a
180-day prison sanction be a prerequisite to any probation revocation no longer exists, we
cannot grant any relief to Bubeck because no matter our decision in this case, the district
court would have the legal authority to revoke Bubeck's probation should she
subsequently violate the conditions of her probation in the future. See State v. McGill, 51
Kan. App. 2d 92, 95, 340 P.3d 515 (date of probation violation determines applicability
of intermediate sanction provisions of K.S.A. 22-3716), rev. denied 302 Kan. 1017
(2015). But even if the question were not moot, given her lengthy history of probation
violations, Bubeck fails to persuade us that the district court abused its discretion by
imposing the 180-day intermediate prison sanction.
Appeal dismissed.
4