State v. Wheeler ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,916
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ANGEL P. WHEELER,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; DAVID L. DAHL, judge Opinion filed July 23, 2021.
Affirmed.
Kasper Schirer, of Kansas Appellate Defender Office, for appellant.
Lance Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before ARNOLD-BURGER, C.J., ATCHESON and HURST, JJ.
PER CURIAM: Angel P. Wheeler appeals the district court's revocation of her
probation and the imposition of a modified prison sentence. Wheeler admitted to
violating the law many times while she was on probation, but she contends that the
district court acted unreasonably and abused its discretion by revoking her probation.
Because Wheeler has failed to show that the district court abused its discretion, its
decision to revoke her probation and impose a modified prison sentence is affirmed.
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FACTUAL AND PROCEDURAL HISTORY
In June 2018, Wheeler pleaded guilty under a plea agreement to one count of
possession of cocaine and three counts of interference with law enforcement. Finding
Wheeler's criminal history score to be A, the district court sentenced Wheeler to 49
months in prison. The district court also followed the recommendation reached by the
parties in the plea agreement and granted Wheeler's request for a downward dispositional
departure to probation.
Just five months later, the district court issued a probation violation warrant
alleging that Wheeler committed multiple new offenses and failed to notify her probation
officer about her contact with law enforcement. Wheeler admitted to the violations; and
the district court imposed a three-day jail sanction and extended her probation for 12
months.
Less than two weeks later, the district court issued another probation violation
warrant alleging Wheeler committed aggravated assault and displayed assaultive
behavior. Wheeler denied these allegations, and the district court held an evidentiary
hearing on her probation violations. The district court ultimately found that Wheeler
violated her probation by committing the alleged offenses. Rather than revoke probation
and order Wheeler to serve her underlying sentence—which the district court had the
discretion to do—the court ordered Wheeler to serve a 60-day jail sanction. See K.S.A.
2017 Supp. 22-3716 (c)(8)(A) (court may bypass intermediate sanctions if probationer
commits a new crime while on probation).
About three weeks after the probation violation hearing, the district court issued
another probation violation warrant alleging Wheeler committed new offenses and failed
to report to her probation officer as directed. While that was pending, the district court
ordered yet another warrant alleging even more offenses, including a violation of the
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Kansas Offender Registration Act (KORA), robbery, fleeing and attempting to elude,
battery on a law enforcement officer, and multiple other offenses.
Wheeler subsequently pleaded guilty to violating the KORA in case No. 19 CR
1514, and to felony battery on a law enforcement officer in case No. 19 CR 1515. The
district court held a joint probation violation and sentencing hearing to address the
probation violations and to impose Wheeler's sentences in 19 CR 1514 and 19 CR 1515.
Wheeler stipulated to violating the terms of probation by committing new crimes,
and she waived a hearing on the other allegations. At the hearing, Wheeler's counsel
stated that Wheeler's long history as a victim of domestic violence had significantly
contributed to her struggles on probation. In addition, Wheeler's counsel stressed that
mental health treatment and medication would be available to Wheeler if the court would
allow her to continue probation. Wheeler told the court, "I just lost my husband . . . who
was causing me most of my problems . . . ." She asked for a second chance to deal with
the issues her attorney had presented to the court, and she said, "I don't think prison will
make it better."
In revoking her probation, the court stated:
"We worked with you, gave you many opportunities when you were on probation
to stay on probation. We hoped that it would work out. It didn't because of the additional
violations that we have seen. And the most recent probation violation matter, which
involved the case itself there were allegations of 17 violations. Some of them were very,
very significant. Very significant violations. We can't ignore that. And that was at a time
when you were on probation when these 17 violations occurred. There were two prior
warrants that we dealt with. They totaled eight violations, including but not limited to a
hit and run of an attended vehicle, aggravated assault, and assaultive-type behavior. And
those took place[] in late 2018 and early 2019."
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The court explained to Wheeler that she was "not amenable to probation because
of the number of violations that we had despite the fact that we have tried to work with
you." The court reiterated that the new offenses in 19 CR 1514 and 19 CR 1515 were
"[v]ery significant violations" and that Wheeler received a "tremendous benefit" through
her plea agreement. The court also noted that Wheeler received multiple opportunities to
succeed on probation.
Wheeler's new convictions in 19 CR 1514 and 19 CR 1515 were the basis for the
court finding Wheeler in violation of her probation. Ultimately, the district court revoked
Wheeler's probation and imposed a modified prison sentencing, reducing the length of
her sentence in this case from 49 months to 12 months. The district court also sentenced
Wheeler to a controlling term of 70 months in prison for her new convictions in 19 CR
1514 and 19 CR 1515. Wheeler filed a notice of appeal.
ANALYSIS
A district court's decision to revoke probation involves two steps: (1) a factual
determination that the probationer has violated a condition of probation; and (2) a
discretionary determination of the appropriate disposition given the proved violations.
State v. Skolaut, 286 Kan. 219, Syl. ¶ 4, 182 P.3d 1231 (2008). Because Wheeler
stipulated that she violated her probation by committing new crimes, the only question
before this court is whether the district court abused its discretion when it revoked her
probation rather than imposing intermediate sanctions or extending her probation. 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). The burden is on Wheeler to show
the district court abused its discretion. See State v. Rojas-Marceleno, 295 Kan. 525, 531,
285 P.3d 361 (2012).
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Wheeler argues the district abused its discretion by revoking her probation
because the district court could have continued, extended, or modified her probation to
allow her the opportunity to benefit from mental health treatment or domestic violence
recovery programs.
The district court's discretion to revoke Wheeler's probation was limited by the
graduated sanction scheme outlined in K.S.A. 2017 Supp. 22-3716. But there are several
exceptions under the statute that allow the court to revoke a defendant's probation even if
it has not previously imposed the required graduated sanction. At least two of those
exceptions apply here.
First, Wheeler's grant of probation resulted from a dispositional departure from a
presumptive prison term. When Wheeler committed her underlying crimes in August
2017, the statute permitted the district court to bypass graduated sanctions if probation
was granted as part of a dispositional departure. K.S.A 2017 Supp. 22-3716(c)(9)(B); see
also State v. Coleman, 311 Kan. 332, 337, 460 P.3d 828 (2020). It is unclear from the
court's comments if it was relying on this exception in revoking Wheeler's probation, but
it was allowed to under the statute.
Second, Wheeler committed a new crime while on probation. The statute permits
the district court to revoke probation with no intermediate sanctions if the defendant
commits a new crime while on probation. K.S.A 2017 Supp. 22-3716(c)(8)(A). The
district court specifically noted that it was revoking Wheeler's probation based on her
multiple probation violations and seriousness of the new crimes. The sentencing journal
entries note that Wheeler has committed many misdemeanor and felony offenses since
being placed on probation in October 2018. These included aggravated assault, escape,
two instances of interference with a law enforcement officer, robbery, fleeing and
eluding, battery on a law enforcement officer, two instances of driving on a suspended
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license, two instances of driving without insurance, and violation of the offender
registration act.
Wheeler has therefore failed to show that the district court's decision turned on any
error of law or fact.
So the only remaining question is whether the district court's decision was
arbitrary, fanciful, or unreasonable. Just because the district court could have imposed
another sanction rather than revoke probation does not by itself show unreasonableness.
Wheeler argues she could have received better treatment for her mental health issues
outside prison. But as the court noted, it gave Wheeler multiple chances while on
probation to adhere to the terms of her probation. The district court could have revoked
her probation and imposed the sentence on Wheeler's first probation violation. Instead,
the district court chose to impose a three-day jail sanction. The district court again could
have revoked probation on Wheeler's second probation violation, but it imposed a 60-day
jail sanction instead. Wheeler's third and final probation violations included "[v]ery
significant violations" that showed repeated, unamenable, and violent behavior. The
district court's decision was not unreasonable because the regularity and severity of
Wheeler's violations and new crimes reasonably warranted revoking probation.
And finally, the district court did show leniency to Wheeler by modifying her
sentence from 49 months to just 12 months. The sentencing journal entry notes that the
court gave Wheeler credit for 363 days served, which would mean she was essentially
given credit for completing her sentence in this case. She would not have been released to
attend mental health treatment at that point even if she were returned to probation
because she was sentenced at the same time in 19 CR 1514 and 19 CR 1515 to over five
years in prison.
Affirmed.
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