State v. Relford

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NOT DESIGNATED FOR PUBLICATION

No. 120,730


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

STEVEN RELFORD,
Appellant.


MEMORANDUM OPINION


Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed February 7,
2020. Affirmed.

Kasper Schirer, of Kansas Appellate Defender Office, for appellant.

Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before ARNOLD-BURGER, C.J., HILL and GARDNER, JJ.

PER CURIAM: Steven Relford admitted to the court that he violated the conditions
of his probation. The court ordered him to serve his prison sentence. He contends the
district court's decision sending him to prison instead of imposing a lesser sanction or a
modified sentence was unreasonable. We are unconvinced and affirm.

Relford was charged with one count of criminal use of a weapon, possessing a
shotgun with a barrel length of approximately 11 inches, and one count of possession of
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drug paraphernalia. In exchange for the State dismissing the drug paraphernalia charge,
he agreed to plead guilty to criminal use of a weapon. As part of the plea agreement, both
parties agreed to recommend the low number in the grid box and the presumption of
probation. Relford agreed that the State could ask for a drug and alcohol evaluation as a
condition of probation.

The court followed the plea agreement and sentenced Relford to a suspended
6-month prison sentence, 12 months' probation, and 12 months of postrelease
supervision. As part of his probation, he was ordered to obtain a drug and alcohol
evaluation and follow all recommendations. He was ordered to refrain from using,
possessing, or consuming any alcohol or illegal drugs including prescription drugs for
which he did not have a prescription. And he was ordered to submit to breath, blood, and
urinalysis testing.

Less than two weeks later, the court issued a warrant for Relford based on
allegations that he admitted to consuming alcohol, methamphetamine, marijuana, and
Xanax. He also submitted a breath analysis with a reading of .024.

At his probation violation hearing, Relford stipulated to the probation violations
and the court found him to be in violation of his probation. Relford's probation officer
recommended imposition of Relford's prison sentence because he had refused all
resources offered to him including locating alternative housing, mental health treatment,
and drug and alcohol treatment. The probation officer argued that he was a public safety
risk. The State recommended that the court make public safety findings considering
Relford's "very serious substance abuse problem" that he refused to address. Relford's
attorney stated that Relford wanted to get drug, alcohol, and mental health treatment for
his posttraumatic stress disorder, arguing that his admission to drug and alcohol use was a
"cry for help." The defense attorney also stated that Relford had a stable place to live
with his grandmother. The district court continued the disposition hearing for Relford to
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obtain an evaluation from the Substance Abuse Center of Kansas and to verify his living
arrangement.

The evaluation stated that Relford did not see his alcohol use as a problem and had
continued to drink despite multiple treatment attempts. The report recommended
inpatient treatment. The public defender's office verified the suitability of Relford's
proposed living arrangements. But the probation officer still recommended imposition of
Relford's prison sentence based on public safety findings because Relford "drives his bike
around town intoxicated." He twice reported to the office intoxicated.

The district court found Relford had undergone prior mental health and substance
abuse treatment but did not see his alcohol use as a problem. According to the evaluation,
regarding his behavior under the influence Relford stated, "depends on if I get pissed
off." The court found that because of Relford's continued drug and alcohol use and his
statements about it, treatment had not worked and probably would not work. The court
found Relford's continued drug and alcohol use and driving under the influence were
public safety concerns. The court bypassed the intermediate sanctions based on its public
safety finding and imposed the underlying 6-month prison sentence and 12-month
postrelease supervision period.

As a preliminary matter, the State contends this appeal is moot because Relford
completed the prison portion of his sentence on April 12, 2019. An issue on appeal may
be dismissed as moot if it can be shown clearly and convincingly that the actual
controversy has ended, the only judgment that could be entered would be ineffectual for
any purpose, and the judgment would not impact any of the parties' rights. State v.
Williams, 298 Kan. 1075, 1082, 319 P.3d 528 (2014). Appellate review of the issue is
unlimited. State v. Hilton, 295 Kan. 845, 849, 286 P.3d 871 (2012).

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This appeal is not moot because Relford is serving his postrelease supervision
period. On April 12, 2019, Relford was released to his 12-month postrelease supervision
period. On appeal, he challenges the district court's decision not to modify his prison
sentence or his postrelease supervision sentence. After revocation of Relford's probation,
the district court had authority to impose "any lesser sentence" including a sentence with
no postrelease supervision term. See K.S.A. 2018 Supp. 22-3716(c)(1)(E); State v.
McKnight, 292 Kan. 776, 782-83, 257 P.3d 339 (2011).

Relford contends the district court's decision not to impose a jail sanction or a
modified sentence rather than his full underlying sentence was unreasonable because:
• it was his first probation revocation;
• it was his first felony offense;
• his violations were technical in nature;
• he drove a bicycle rather than a motor vehicle; and
• he had secured placement in an inpatient drug treatment program.

We have long held that once a probation violation has been established, the
decision to revoke probation rests within the sound discretion of the district court. State v.
Skolaut, 286 Kan. 219, 227-28, 182 P.3d 1231 (2008). A judicial action constitutes an
abuse of discretion if the action is:
• arbitrary, fanciful, or unreasonable;
• based on an error of law; or
• based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253
(2014).

Relford bears the burden to show an abuse of discretion. See State v. Stafford, 296 Kan.
25, 45, 290 P.3d 562 (2012).

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This discretion is not unlimited. K.S.A. 2018 Supp. 22-3716(c) restricts how a
court can sanction a probation violator. The statute provides that a sentencing court
should impose a series of intermediate, graduated sanctions before ordering a probation
violator to serve his or her underlying sentence unless certain exceptions apply. For
example, the district court need not impose any intermediate sanction if the offender
"commits a new felony or misdemeanor while the offender is on probation" or if the court
"finds and sets forth with particularity the reasons for finding that the safety of members
of the public will be jeopardized or that the welfare of the offender will not be served by
such sanction." K.S.A. 2018 Supp. 22-3716(c)(8), (c)(9). Here, the district court invoked
the public safety exception.

Upon revocation of probation, the district court can order a probationer to serve
his or her original underlying sentence or "any lesser sentence." State v. McGill, 271 Kan.
150, 154, 22 P.3d 597 (2001). The district court's denial of a post-probation-revocation
sentence modification is reviewed for abuse of discretion. State v. Weekes, 308 Kan.
1245, Syl., 427 P.3d 861 (2018).

Relford gives us no legal or factual basis to hold that the district court erred. He
does not challenge the legal adequacy of the district court's public safety finding. See
State v. Duran, 56 Kan. App. 2d 1268, Syl. ¶ 3, 445 P.3d 761 (2019), petition for rev.
filed July 19, 2019. Nor does he challenge the factual accuracy of the contention that he
drove to his probation officer's office intoxicated (his breath alcohol level was .024).
Rather, he argues the district court's decision to impose his underlying sentence without
modification was unreasonable.

To support this contention, Relford must show that no reasonable person would
have taken the district court's position. See State v. Reeves, 54 Kan. App. 2d 644, 648,
403 P.3d 655 (2017), rev. denied 307 Kan. 992 (2018). He fails to meet this burden.
Based on the court's finding that Relford was a public safety risk because he drove his
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bike while intoxicated and he did not consider his drug and alcohol use a problem despite
prior treatment attempts, we cannot hold that no reasonable person would have imposed
Relford's underlying sentence without modification.

Affirmed.