State v. Birtha, No. 122,309

Decision Date28 August 2020
Docket NumberNo. 122,309
Citation469 P.3d 1288 (Table)
CourtKansas Court of Appeals
Parties STATE of Kansas, Appellee, v. Aaron BIRTHA, Appellant.
MEMORANDUM OPINION

Per Curiam:

Defendant Aaron Birtha appeals the decision of the Sedgwick County District Court to revoke his probation and to require that he serve his prison sentence for an aggravated battery conviction. On appeal, Birtha filed a motion for summary disposition ostensibly indicating the district court abused its discretion. See Kansas Supreme Court Rule 7.041A (2020 Kan. S. Ct. R. 47). We have granted the motion, and upon review of the record, we find no abuse of discretion and, therefore, affirm the district court.

In May 2018, the State charged Birtha with one count of rape and later amended the charge to aggravated battery, a severity level 7 person felony. Birtha pleaded guilty to the amended charge, and the district court later sentenced him to 16 months in prison with 12 months' postrelease supervision and placed him on probation for 24 months, reflecting a standard guidelines sentence consistent with Birtha's scorable criminal history and the joint sentencing recommendation of the parties.

At a probation revocation hearing in December 2019, Birtha admitted to five violations: The commission of battery and criminal damage to property both on November 10, 2019 (two violations); having contacted the victim in this case on November 10 and November 24 (two violations); and "taking property without permission" on November 12. Based on those admissions, the State declined to pursue other probation violations that had been charged.

Through his lawyer, Birtha asked that he be continued on probation or that his sentence be shortened because he continued to wrestle with mental health and substance abuse issues that would be better addressed in a community setting than in prison. He also noted that Birtha had a longtime personal relationship with the victim, but the relationship had recently ended, likely improving the prospects Birtha would comply with various probation conditions going forward. Birtha also spoke and asked for an opportunity to do better with probation.

The district court denied the request for continued probation or a reduction in the 16-month sentence and ordered Birtha to serve the sentence. The district court first noted that Birtha's contact with the victim had come up before. The district court declined to find a probation violation in October for improper contact but warned Birtha that any violation of that condition would not be tolerated. Birtha, nonetheless, violated that condition, as he had admitted. The district court also cited Birtha's ongoing criminal behavior, as evidenced by his admission to committing new crimes.

Birtha has appealed and argues the district court's decision amounts to an abuse of judicial discretion.

Probation is an act of judicial leniency afforded a defendant as a privilege rather than a right. See State v. Gary , 282 Kan. 232, 237, 144 P.3d 634 (2006). A district court's decision to revoke probation usually involves two steps: (1) a factual determination that the probationer has violated a condition of probation; and (2) a discretionary determination as to the appropriate disposition in light of the proved violations. State v. Skolaut , 286 Kan. 219, Syl. ¶ 4, 182 P.3d 1231 (2008).

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