State v. Everett, 111,168

• Decision Date: 26 June 2015
• Docket Number: 111,168,111,169.
• Parties: STATE of Kansas, Appellee, v. Robert T. EVERETT, Appellant.
• Court: Kansas Court of Appeals

353 P.3d 469 (Table)

STATE of Kansas, Appellee

v.Robert T. EVERETT, Appellant.

111,168

111,169.

Court of Appeals of Kansas.

June 26, 2015.

Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.

Ellen H. Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.

Before PIERRON, P.J., BUSER and POWELL, JJ.

MEMORANDUM OPINION

PER CURIAM.

Robert Thomas Everett appeals the district court's order revoking his probation and ordering him to serve his original sentence. Everett does not challenge the court's decision denying probation but argues the court abused its discretion in refusing to impose a lesser sentence.

Everett's probation in two cases is at issue. In February 2010, Everett pled guilty to aggravated battery. The district court sentenced him to a presumptive underlying sentence of 10 months' incarceration and granted probation for 12 months. In December 2010, Everett pled guilty to attempted kidnapping, aggravated assault, aggravated endangering of a child, and criminal possession of a firearm. The court sentenced him to underlying sentences of 55, 13, 7, and 9 months' incarceration respectively. The court ordered the sentences to run consecutively for a total underlying sentence of 84 months' incarceration. However, the court granted a dispositional departure and ordered Everett to serve 12 months' probation.

Over the next several years, the district court revoked Everett's probation several times but extended its grace to reinstate his probation each time. On November 25, 2013, the court revoked Everett's probation for the final time. He appeared that day for sentencing for a new conviction of interference with a law enforcement officer and also the probation revocation. The court ordered Everett to serve 16 months' incarceration on the new charges.

With regard to the probation revocation, Everett asked the district court to consider State v. McGill, 271 Kan. 150, 22 P.3d 597 (2001), and order a reduction in his sentence for the two prior cases. Everett informed the court that his grandmother was caring for his daughters because their mother was not in the picture. The grandmother was sick and he needed to be there to care for his kids. The court revoked Everett's probation based on his repeated past violations and also the new conviction. The court also denied Everett's request for reduction in his sentence. The court ordered Everett to serve his underlying sentences and to serve them consecutively, and consecutive to the new sentence.

On appeal, Everett contends the district court abused its discretion in...