State v. Roubideaux-Davis

• Docket Number: 125,764
• Decision Date: 01 September 2023
• Parties: State of Kansas, Appellee, v. Tanner L. Roubideaux-Davis, Appellant.
• Court: Kansas Court of Appeals

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State of Kansas, Appellee, v. Tanner L. Roubideaux-Davis, Appellant.

No. 125,764

Court of Appeals of Kansas

September 1, 2023

NOT DESIGNATED FOR PUBLICATION

Appeal from McPherson District Court; JOHN B. KLENDA, judge.

Emily Brandt, of Kansas Appellate Defender Office, for appellant.

Natalie Chalmers, assistant solicitor general, and Kris W Kobach, attorney general, for appellee.

Before COBLE, P.J., GARDNER and CLINE, JJ.

MEMORANDUM OPINION

PER CURIAM:

Tanner L. Roubideaux-Davis appeals the district court's decision revoking his probation and ordering him to serve his prison sentence without first imposing a graduated sanction. Roubideaux-Davis stipulated to several probation violations including that he used marijuana, methamphetamine, alcohol and oxycodone with fentanyl, and failed to report twice. On appeal, Roubideaux-Davis argues that because the State failed to meet its burden to prove he committed a new crime, the district court should have imposed a graduated sanction rather than revoke his probation. Having reviewed the record, we find the State met its burden, yet we still reverse and remand with directions.

Factual and Procedural Background

In August 2021, Roubideaux-Davis pleaded no contest to one count of possession of methamphetamine. Before sentencing, Roubideaux-Davis moved for border box findings, requesting an optional non-prison sentence under K.S.A. 2021 Supp. 21-6804(q). The presentence investigation recommended mandatory Senate Bill 123 (SB 123) drug treatment. Based on the border box findings, the district court granted Roubideaux-Davis' request, sentenced him to imprisonment for 30 months, then suspended that sentence and placed him on probation for 18 months. The district court also ordered Roubideaux-Davis, as part of his probation, to follow the SB 123 assessment which recommended that he participate in intensive outpatient and individual outpatient treatment for his drug addiction.

In September 2022, a McPherson County intensive supervision officer moved to revoke Roubideaux-Davis' probation. The affidavit in support of the amended motion alleged that Roubideaux-Davis had been unsuccessfully discharged from inpatient treatment; had used marijuana, methamphetamine, alcohol, and oxycodone with fentanyl; had failed twice to report as instructed; and committed traffic violations and had been arrested for his illegal act of driving under the influence.

At the probation revocation hearing, Roubideaux-Davis stipulated to the probation violations alleged in the amended motion and set out in the affidavit, except for its allegations that he was arrested and had engaged in illegal activity by driving under the influence and committing traffic violations. Roubideaux-Davis asked the district court to continue his probation and impose either a 3-day jail sanction or a 60-day jail sanction that he could serve on weekends.

Instead, the district court revoked Roubideaux-Davis' probation, explaining:

"Well, Mr. Roubideaux-Davis, I am going to revoke your probation for a number of reasons. Looking back on your file I saw you had 14 prior convictions. You have a very serious conviction back in Rice County. The sentence ran consecutive with that Rice County sentence. The Court did make border box findings in an attempt to allow you to be placed on probation, and it appears to the Court that you just have not been able to follow the terms and conditions of your probation order. Most concerning was the fact that you were not able to complete the inpatient treatment program and you were unsuccessfully discharged from that.

"In addition, by failing to report as instructed, by continuing to use methamphetamine, it's clear to the Court that we're just unable to provide to you the necessary supervision and programs to assist you without your cooperation, and it does not appear to the Court that you're going to be amenable to completing your probation. So the Court is going to revoke your probation."

The district court ordered Roubideaux-Davis to serve his original prison sentence of 30 months.

The journal entry of the probation violation hearing describes the violations which led to the court's revocation of probation as:

"On 5/19/2022, the defendant admitted to use of marijuana on 5/16/2022. On 5/26/2022, the defendant failed to report as instructed. On 6/2/2022, the defendant admitted to use of methamphetamines. On 6/2/2022, the defendant engaged in illegal activity for Driving in Violation of Restrictions on driver's license or permit as alleged by McPherson Police Department Citation number 28106. On 7/7/2022, the defendant failed to report as instructed. On 7/8/2022, the defendant engaged in illegal activity and was arrested for Driving Under the Influence (4th or subsequent), Driving Under the Influence (4th or Subsequent) Incapable of Safe Driving, Ignition Interlock Device; Operate Car without required Device, Vehicle Liability Insurance; Liability Insurance required as alleged by Hutchinson Police Department case number 22CR453. On 7/14/2022, the defendant admitted to use of alcohol, and oxycodone with fentanyl."

Roubideaux-Davis appeals, arguing that the district court erroneously revoked his probation without imposing a graduated sanction, as this was his first probation violation and none of the exceptions to the graduated sanction requirement applied. Roubideaux-Davis does not argue that the district court otherwise abused its discretion to revoke his probation.

General Legal Principles

Probation is an act of judicial leniency that a defendant receives as a privilege rather than a right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). But once it is conferred upon a defendant, the defendant has a liberty interest in remaining on probation and may have it revoked only if the defendant violates the conditions of probation. State v Hurley, 303 Kan. 575, 581, 363 P.3d 1095 (2016).

Once a probation violation is established, a district court has discretion to revoke probation unless the court is otherwise limited by statute. State v. Tafolla, 315 Kan. 324, 328, 508 P.3d 351 (2022); see K.S.A. 2020 Supp. 22-3716 (requiring graduated sanctions before revocation at times). A judicial action constitutes an abuse of discretion if: (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. State v. Levy, 313 Kan. 232, 237, 485 P.3d 605 (2021). Roubideaux-Davis bears the burden of showing an abuse of discretion. See State v. Crosby, 312 Kan. 630, 635, 479 P.3d 167 (2021).

Generally, the statute in effect when the offender committed the crime of conviction governs the appropriate disposition for probation violations. State v. Coleman, 311 Kan. 332, 334-37, 460 P.3d 828 (2020). Because Roubideaux-Davis committed his original crime in April 2021, the 2020 version of K.S.A. 22-3716(c)(7) applies. Under those amendments, the district court may revoke an offender's probation after the offender has received at least one two-or three-day jail sanction. See K.S.A. 2020 Supp. 22-3716(c)(1)(C).

But that general rule requiring graduated sanctions has four exceptions. A district court may revoke probation without having previously imposed a sanction if:

(A) The district 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,"

(B) the offender received probation as the result of a dispositional departure,

(C) the offender committed a new felony or misdemeanor, or

(D) the offender absconded while on probation. K.S.A. 2020 Supp. 22-3716(c)(7).

The district court had never imposed a graduated sanction on Roubideaux-Davis, so the district court could not bypass the graduated sanction requirement unless one of these four exceptions applied. Yet the probation revocation hearing transcript and its journal entry do not identify a statutory bypass provision the district court relied on. But subsections (A), (B), and (D) of K.S.A. 2020 Supp. 22-3716(c)(7) are inapplicable, as the State does not argue that Roubideaux-Davis absconded from supervision or had received dispositional departure, see K.S.A. 2020 Supp. 21-6804(q) (border box sentence is not departure), or that the district court sufficiently found that Roubideaux-Davis jeopardized the public's safety or that his welfare would not be served by a graduated sanction. The parties agree that the sole issue is whether enough evidence showed Roubideaux-Davis had committed a new felony or misdemeanor under subsection (C) of that statute.

The State bears the burden to establish that the probationer violated the terms of probation by a preponderance of the evidence-meaning that the violation is more probably true than not true. State v. Lloyd, 52 Kan.App.2d 780, 782, 375 P.3d 1013 (2016). Appellate courts review the district court's factual findings for substantial competent evidence. See State v. Inkelaar, 38 Kan.App.2d 312, 315, 164 P.3d 844 (2007). Substantial evidence is such legal and relevant evidence as a reasonable person might accept as sufficient to support a conclusion. Gannon v. State, 298 Kan. 1107, 1175, 319 P.3d 1196 (2014). In determining whether substantial competent evidence supports the district court's findings, we must accept as true the evidence and all the reasonable inferences drawn from the evidence which support the district court's findings and must disregard any conflicting evidence or other inferences that might be drawn from it. ^{298 Kan. at 1175-76} (citing Unruh v. Purina Mills, 289 Kan. 1185, 1196, 221 P.3d 1130 [2009]).

Roubideaux-Davis stipulated to the alleged probation violations set out in the ...