State v. Cherry

NOT DESIGNATED FOR PUBLICATION

No. 119,568

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DOUGLAS D. CHERRY,
Appellant.

MEMORANDUM OPINION

Appeal from Douglas District Court; PAULA B. MARTIN, judge. Opinion filed March 1, 2019.
Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h).

Before MALONE, P.J., LEBEN and POWELL, JJ.

PER CURIAM: Douglas Cherry appeals the district court's decision to revoke his
probation and order that he serve the underlying 19-month prison sentence on his
conviction for forgery. Cherry argues on appeal that the district court should have given
him an additional chance at probation. But since Cherry was on probation as the result of
a dispositional departure the district court granted at sentencing, the court wasn't required
to give him another chance. We find no abuse of discretion in the court's decision not to
do so.

Cherry was first sentenced to probation in July 2017—a dispositional departure
from the presumptive 18- to 20-month prison sentence established in our state's
sentencing guidelines. (The guidelines sentence was based on the severity of the offense
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and Cherry's criminal-history score.) Several months later, the State alleged that Cherry
had failed to comply with the conditions of his probation by: (1) being arrested for and
charged with rape; (2) failing to submit to electronic monitoring at all times; (3) failing to
provide documentation showing that he complied with behavioral-health-treatment
requirements; (4) failing to report to his probation officer, including after his arrest; and
(5) not completing the court-ordered Thinking for a Change program.

Cherry appeared before the district court at a hearing on the allegations, where his
attorney advised the court that Cherry would stipulate to the allegations in the State's
petition. Cherry's attorney said that the parties would jointly recommend that the court
revoke and reinstate Cherry's probation for 12 months after he serve a 3-day sanction. But
when Cherry was asked whether he wished to admit the allegations made against him, he
said he would admit only the failure to report that he had been arrested. The rest of the
allegations, he said, were false.

That started a discussion between Cherry and the court that runs for about 10
pages in the hearing transcript. Cherry did admit some of the other allegations—that he
hadn't completed the Thinking for a Change program, that he hadn't notified his probation
officer of completion of the court-ordered behavioral-health-treatment requirements, and
that he hadn't contacted his probation officer (though Cherry said the probation officer
knew how to contact Cherry).

After hearing Cherry's comments, the court said: "I can't agree that you're
amenable to probation. You blame everybody else for everything that's happened to you.
And you need to take some responsibility and . . . do the things that you're expected to
do, and I don't think you can do that." The court concluded that Cherry had violated his
probation by failing to follow the behavioral-treatment requirements, failing to complete
the Thinking for a Change program, and failing to report to his probation officer. Based
on the violations, the court revoked Cherry's probation and ordered him to serve his
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underlying sentence. The court explained that because Cherry's original sentence of
probation had been a dispositional departure (since Cherry had a presumptive prison
sentence) "the sentencing guidelines don't require there to be an intermediate sanction
before there can be a revocation and a remand to [the Department of Corrections]."

Cherry appealed to our court, arguing that the district court erred by revoking
probation without first imposing an intermediate sanction of three days in jail. But he
hasn't shown that the district court made an error.

Traditionally, district courts in Kansas have had broad authority to revoke
probation on any significant violation. A 2013 statutory change limited that discretion
and required that intermediate sanctions generally be used before the court can revoke
probation and impose the underlying prison sentence. See K.S.A. 2018 Supp. 22-3716.
But the district court didn't have to use intermediate sanctions in this case: Cherry was on
probation in the first place because the sentencing court had granted a dispositional
departure, so the district court had the discretion to revoke probation and impose the
prison sentence if Cherry violated his probation. See K.S.A. 2018 Supp. 22-
3716(c)(9)(B).

When the district court has that option, we may set aside its decision to revoke
probation only for abuse of discretion. A court abuses its discretion if its decision is based
on factual or legal error or no reasonable person would agree with it. See State v. Schaal,
305 Kan. 445, 449, 383 P.3d 1284 (2016); State v. Brown, 51 Kan. App. 2d 876, 879-80,
357 P.3d 296 (2015).

We find no abuse of discretion here. It is undisputed that Cherry was originally
granted probation as the result of the district court granting him a dispositional departure
at sentencing, and Cherry stipulated to violating some of the terms of his probation. That
gave the district court the option to revoke his probation and impose the underlying
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prison sentence without first imposing an intermediate sanction. Based on our review of
Cherry's statements to the district court, we conclude that a reasonable person could agree
with the conclusion the district court made—that Cherry wasn't a good candidate for
further probation.

On Cherry's motion, we accepted this appeal for summary disposition under
K.S.A. 2018 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 district court, and we find no
error in its decision to revoke Cherry's probation.

We affirm the district court's judgment.