State v. Shannon ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,390
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DARREL GENE SHANNON JR.,
Appellant.
MEMORANDUM OPINION
Appeal from Saline District Court; PATRICK H. THOMPSON, judge. Opinion filed March 13, 2020.
Affirmed.
Submitted for summary disposition pursuant to K.S.A. 2019 Supp. 21-6820(g) and (h).
Before GREEN, P.J., HILL AND LEBEN, JJ.
PER CURIAM: Darrel Shannon appeals the district court's decision revoking his
probation and ordering him to serve his original sentence. He argues that the district court
should have given him a 180-day prison sanction and another chance on probation. But
Shannon had already violated his probation once and had served intermediate sanctions
of 2-day and 6-day stays in the county jail and a 120-day stay in prison. After that, he
admitted to violating his probation again almost immediately after his release. In this
circumstance, the district court had the discretion to revoke his probation, and we find no
abuse of its discretion in doing so. We therefore affirm the district court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On March 25, 2016, Shannon pleaded guilty to one count of possession of
methamphetamine and one count of possession of drug paraphernalia. The district court
sentenced Shannon to 18 months of probation and drug treatment with an underlying
prison sentence of 17 months. Shannon would only serve his prison sentence if he failed
to successfully complete his probation, which included participating in substance-abuse
treatment, remaining drug- and alcohol-free, submitting to drug testing, maintaining full-
time employment, and reporting to his probation officer.
Three months before his probation expired, Shannon agreed to modify his
probation in this case and three others because he owed 40 hours of community service
and $2,682.16 in court costs. The district court extended his probation by 12 months.
While on probation, Shannon's probation officer imposed 2-day and 6-day jail stays as
sanctions for probation violations.
In May 2018, Shannon stipulated to violating his probation by failing to report to
his probation officer, abide by his curfew, submit to drug tests, remain drug-free, inform
his probation officer of residence changes, maintain suitable employment, and pay court
ordered fines and fees. The court imposed a 120-day prison sanction.
Shannon was released from prison on July 6, 2018, and failed to report to his
probation officer. The probation officer requested a warrant on July 26, 2018, and the
State moved to revoke Shannon's probation. At a hearing, Shannon's probation officer
testified that Shannon did not report to her after he was released from prison and failed to
show up for his drug-and-alcohol evaluation. Shannon admitted that he did not call or
visit his probation officer after he left prison, attend his drug-and-alcohol evaluation, or
attend detox. When asked why, Shannon testified, "I'm going to get in trouble as it is . . . .
[I]f I'm going to get in trouble, I might as well stay out as long as I possibly can."
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Shannon and his probation officer recommended a 180-day prison sanction. But
the district court revoked Shannon's probation and imposed his 17-month prison
sentence; the court also imposed the sentences in three other cases. Shannon filed a
timely notice of appeal.
ANALYSIS
Shannon argues that the district court erred in revoking his probation and imposing
his prison sentence.
The State contends that Shannon's appeal is moot because he completed serving
his sentence and is currently on postrelease supervision according to the Kansas
Department of Corrections website. But this website is not part of the record on appeal
and we cannot take judicial notice of its information. The website includes a disclaimer
that the information it contains may be inaccurate. Kansas Supreme Court Rule 2.042
(2019 Kan. S. Ct. R. 18) requires the State, after an appeal is docketed, to serve notice on
the clerk of the appellate courts of any change in defendant's custodial status while the
appeal is pending. The State has not provided this notice, so we will not consider its
argument that Shannon's appeal is moot. See State v. Gross, No. 120,161, 2019 WL
2553929, at *1 (Kan. App. 2019) (unpublished opinion) (refusing to take judicial notice
of information provided by the KDOC website); see also State v. Ellis, No. 110, 904,
2015 WL 1402820, at *2 (Kan. App. 2015) (unpublished opinion) (refusing to take
judicial notice of information provided by the KASPER website).
Once we turn to the merits of Shannon's appeal, the legal rules are straightforward.
A district court's decision to revoke probation must be based on a factual finding that a
condition of probation has been violated. Once a probation violation is established, the
district court has discretion to revoke probation. State v. Skolaut, 286 Kan. 219, 227-28,
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182 P.3d 1231 (2008). But at the time Shannon committed his probation violations, that
discretion was limited by the statute governing probation revocation. K.S.A. 2018 Supp.
22-3716. Unless the defendant had committed a new crime or absconded from
supervision, the district court first had to impose intermediate sanctions before it could
exercise its discretion to revoke probation. K.S.A. 2018 Supp. 22-3716(b) and (c).
For most felony crimes, the first intermediate sanction was a 2- or 3-day period in
jail. K.S.A. 2018 Supp. 22-3716(c)(1)(B). After that first jail sanction, the court could
order the defendant to serve either 120 or 180 days in prison. K.S.A. 2018 Supp. 22-
3716(c)(1)(C)-(D). These longer sanctions could be imposed just one time each. K.S.A.
2018 Supp. 22-3716(c)(1)(C)-(D). If the defendant violated probation again after serving
a 120- or 180-day sanction, the court had discretion to revoke probation. K.S.A. 2018
Supp. 22-3716(c)(1)(E); State v. Dooley, 308 Kan. 641, 648-49, 423 P.3d 469 (2018).
In this case, Shannon had already served 2-day and 6-day jail sanctions during his
probation. He served a 120-day prison sanction after his May 2018 probation violation.
Since the district court had already imposed the intermediate sanctions laid out in the
probation-revocation statute, we review its decision to revoke Shannon's probation for an
abuse of discretion. Unless the district court has made a legal or factual error, we may
find an abuse of discretion only when no reasonable person would agree with the district
court's decision. State v. McCllough, 293 Kan. 970, 981, 270 P.3d 1142 (2012); State v.
Del Rio, No. 114,226, 2016 WL 2611127, at *2 (Kan. App. 2016) (unpublished opinion).
We find nothing unreasonable about the district court's decision to revoke
Shannon's probation. Shannon admitted to violating his probation in May 2018. After
serving a 120-day sanction for that violation, he immediately violated his probation again
by failing to report to his probation officer, attend court-ordered drug treatment, and
attend his drug evaluation. He admitted the violations at his hearing and his testimony
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suggests intentional noncompliance: "[I]f I knew I was going to get in trouble anyway, I
figured I would stay out as long as I could."
The district court had imposed all required intermediate sanctions before revoking
Shannon's probation. See K.S.A. 2018 Supp. 22-3716(c)(1)(E). With multiple sanctions
and two probation violations, it was not unreasonable for the district court to conclude
that Shannon was not responding to probation and impose his prison sentence. See Del
Rio, 2016 WL 2611127, at *2 (affirming the district court's decision to revoke probation
where the defendant had several violations, sanctions, and attempts at probation).
On Shannon'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 that was available to the sentencing court, and
we find no error in its decision to revoke Shannon's probation.
We affirm the district court's judgment.
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