State v. Ramirez ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,227
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
SAUL A. RAMIREZ,
Appellant.
MEMORANDUM OPINION
Appeal from Shawnee District Court; STEVEN R. EBBERTS, judge. Opinion filed August 20, 2021.
Affirmed.
Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.
Michael J. Duenes, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before WARNER, P.J., CLINE, J., and WALKER, S.J.
PER CURIAM: Saul Ramirez appeals the district court's revocation of his probation
and imposition of his underlying 12-month jail sentence. He claims the court abused its
discretion because its decision to revoke his probation relied in part on various earlier
probation violations for which he had already been sanctioned. He also asserts that no
reasonable person would agree with the court's decision. After carefully considering
Ramirez's arguments and the record before us, we affirm the district court's ruling.
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FACTUAL AND PROCEDURAL BACKGROUND
Ramirez pleaded guilty in December 2019 to one count of driving under the
influence (DUI)—his third DUI conviction. The district court sentenced Ramirez to a
12-month jail term and ordered him to pay a $1,750 fine. The court then, in accordance
with the parties' recommendations, suspended the jail sentence and ordered Ramirez to
serve 2,160 hours (90 days) of house arrest followed by 12 months' probation.
Ramirez's probation was subject to several conditions, including that he complete
an alcohol treatment program and group therapy and meet periodically with his probation
officer. After several incidents where he did not attend mandatory recovery meetings,
Ramirez's probation officer cautioned him that further noncompliance with the terms of
his probation could lead to sanctions or even a revocation. When he still did not attend
required treatment sessions and group therapy, the probation officer required him to serve
a 72-hour jail sanction.
Ramirez completed this sanction on July 19, 2020. Less than two weeks later, he
again failed to report to a required group therapy session. The State then moved to revoke
his probation, citing his repeated tardiness and absence from his mandated drug and
alcohol treatment, his failure to keep telephone appointments, and his admission that he
had not remained alcohol-free.
During the hearing on the State's motion, the probation officer outlined the various
ways Ramirez had not complied with the conditions of his probation. The officer
conceded that all but one of Ramirez's violations had occurred before his 72-hour
sanction. But she explained that Ramirez had missed the treatment session directly after
serving his sanction—imposed when he missed several earlier meetings—and concluded
that Ramirez had "not successfully complete[d] treatment at all." Ramirez acknowledged
he had not participated in his recovery program or attended his court-mandated treatment
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sessions, but he requested the court to order further alcohol treatment instead of requiring
him to serve his underlying jail sentence.
The district court concluded that Ramirez had violated the terms of his probation
on multiple occasions, most recently and most notably by missing the group therapy
session immediately after he was sanctioned for previous noncompliance. The court
observed that it did not appear that Ramirez was "getting the issue" during treatment and
probation. The court thus revoked Ramirez's probation and ordered him to serve the
underlying 12-month jail term.
DISCUSSION
On appeal, Ramirez argues that the district court made an error of law by
including in its analysis violations that occurred before his 72-hour sanction. He further
asserts that the single violation of his probation conditions after that sanction—missing
the following group therapy session—does not justify revoking his probation. We find
neither argument persuasive.
A district court's decision to revoke probation involves two steps: (1) a factual
finding that the offender has violated a condition of probation and (2) a discretionary
assessment of the appropriate disposition in light of the proved violation. State v. Skolaut,
286 Kan. 219, Syl. ¶ 4, 182 P.3d 1231 (2008). Once a violation has been established, the
decision to reinstate probation or to revoke and incarcerate the offender rests within the
sound discretion of the district court. 286 Kan. at 227-28. A district court exceeds that
discretion if it rules in a way no reasonable judge would under the circumstances, if it
ignores controlling facts or relies on unproven factual representations, or if it acts outside
the legal framework appropriate to the issue. See State v. Darrah, 309 Kan. 1222, 1227,
442 P.3d 1049 (2019). Ramirez carries the burden of showing that the district court
abused its discretion. See State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).
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Turning to Ramirez's arguments, the transcript does not reflect that the district
court revoked his probation as a sanction for his probation violations predating his
72-hour jail sanction. Rather, the court noted that he had a history of noncompliance, was
sanctioned, and nevertheless missed his next group therapy session. The court found that
this missed session again violated the conditions of his probation.
Ramirez does not contest this finding. Rather, his argument concerns the court's
decision to revoke his probation instead of imposing some other sanction. Ramirez argues
that because he had already been penalized for his previous probation violations, the
court could not take his earlier conduct into account when it determined the proper course
of action following his missed therapy appointment. And he asserts that it was
unreasonable for the court to revoke his probation solely on that basis. We disagree.
Probation is an act of judicial leniency afforded a person as a privilege rather than
a right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Contrary to Ramirez's
arguments on appeal, a district court's decisions regarding probation do not occur within
a vacuum. Rather, Kansas law provides the courts flexibility to craft individualized
approaches—within the statutory probation framework—to address the circumstances
surrounding each violation and each offender.
K.S.A. 2018 Supp. 22-3716(b)(3)(B), which governs probation in cases involving
DUI convictions, affords a court broad discretion when faced with a probation violation.
Unlike cases involving other felony convictions that are subject to a graduated-sanction
framework under K.S.A. 2018 Supp. 22-3716(c), the district court in Ramirez's case had
discretion—based on the most recent, postsanction probation violation—to continue or
modify the probation after imposing a jail sanction of up to 60 days, to impose a 2- or 3-
day jail sanction with no modification, or to revoke probation and impose a legally
appropriate term of incarceration. See K.S.A. 2018 Supp. 22-3716(b)(3)(B)(i)-(iii).
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In such cases, appellate courts will only overturn a district court's ruling when the
court abuses its discretion. See State v. Coleman, 311 Kan. 332, 334, 460 P.3d 828(2020). Here, the district court found that Ramirez's actions—failing to show up for his
group therapy session immediately after he had been sanctioned for multiple similar
violations—showed that he was not benefiting from the treatment plan or probation
generally. As the district court noted, Ramirez was not "getting the issue"; he had not
responded well to probation and to the treatment setting. Thus, instead of imposing an
additional sanction or extending probation, the court revoked his probation and ordered
him to serve his underlying jail sentence. This assessment was not unreasonable.
The district court did not abuse its discretion when it revoked Ramirez's probation
and ordered him to serve his underlying jail term.
Affirmed.
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