State v. Esquivel

S
                         NOT DESIGNATED FOR PUBLICATION

                                           No. 121,962


             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                       STATE OF KANSAS,
                                           Appellee,

                                                 v.

                                   HENRY PAUDA ESQUIVEL,
                                         Appellant.


                                 MEMORANDUM OPINION

       Appeal from Finney District Court; ROBERT J. FREDERICK, judge. Opinion filed October 30,
2020. Affirmed.


       Submitted by the parties for summary disposition pursuant to K.S.A. 2019 Supp. 21-6820(g) and
(h).


Before ARNOLD-BURGER, C.J., BUSER and WARNER, JJ.


       PER CURIAM: Henry Pauda Esquivel appeals the district court's revocation of his
probation and imposition of a modified sentence. We granted Esquivel's motion for
summary disposition in lieu of the filing of briefs pursuant to Kansas Supreme Court
Rule 7.041A (2020 Kan. S. Ct. R. 47). The State did not file a response to the motion.


       On appeal, Esquivel contends the district court abused its discretion by revoking
his probation because he had no prior probation violations and his rehabilitation would be
advanced by receiving drug treatment and participating in the community. Under the



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circumstances presented, we find the district court did not abuse its discretion in revoking
Esquivel's probation in this case. We affirm the district court.


                        FACTUAL AND PROCEDURAL BACKGROUND

       Esquivel pled no contest to one count of distribution of methamphetamine on June
1, 2018. The district court sentenced him to 73 months in prison and 36 months of
postrelease supervision. In keeping with a plea agreement between Esquivel and the
State, the district court granted him a downward dispositional departure to 36 months of
probation.


       In March 2019, the State alleged that Esquivel violated the terms of his probation
by failing to attend a scheduled office visit with his case officer and by failing to
complete a drug and alcohol evaluation as ordered by the district court. Prior to the
revocation hearing, Esquivel reached a global agreement with the State involving two
other criminal cases and this case on appeal. As related to this case, under the terms of
the agreement Esquivel admitted to violating his probation and agreed to having his
probation revoked in exchange for the State's recommendation to modify his sentence to
60 months' imprisonment.


       In accordance with the agreement, the district court revoked Esquivel's probation
and imposed a reduced sentence of 60 months' imprisonment. The district court cited
K.S.A. 2019 Supp. 22-3716(c)(7)(B) in its revocation order, noting that revocation was
permitted without the necessity of imposing intermediate sanctions because Esquivel's
original sentence was the result of a dispositional departure.


       Esquivel appeals.




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                                         ANALYSIS

       Probation is an act of judicial leniency afforded a defendant as a privilege rather
than a right. 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).


       A defendant's admission to having committed probation violations satisfies the
first step. Here, Esquivel admitted to violating the terms of his probation, relieving the
State of its duty to prove the violations by a preponderance of the evidence. See State v.
Gumfory, 

281 Kan. 1168

, 1170, 

135 P.3d 1191

(2006); State v. Inkelaar, 

38 Kan. App. 2d 312

, 315, 

164 P.3d 844

(2007). After a violation has been established, the decision to
reinstate probation or to revoke and incarcerate the probationer rests within the sound
discretion of the district court. See 

Skolaut, 286 Kan. at 227

. Judicial discretion has been
abused if a decision is arbitrary, fanciful, or unreasonable or rests on a substantive error
of law or a material mistake of fact. State v. Cameron, 

300 Kan. 384

, 391, 

329 P.3d 1158

(2014). Esquivel has the burden to show that the district court abused its discretion. See
State v. Stafford, 

296 Kan. 25

, 45, 

290 P.3d 562

(2012).


       Important to this appeal, Esquivel's original sentence was a dispositional departure
from a presumptive sentence of incarceration. A district court may revoke a defendant's
probation if the defendant was granted a downward dispositional departure from
presumptive incarceration to probation despite the fact that intermediate sanctions have
not been previously imposed. K.S.A. 2019 Supp. 22-3716(c)(7)(B). As a result, the
district court acted within the governing statutory rules.




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       The only remaining question is whether the district court's decision was arbitrary,
fanciful, or unreasonable. Given that Esquivel voluntarily entered into an agreement with
the State to amicably resolve three criminal cases—including this one—and the district
court faithfully adhered to Esquivel's requested disposition in this case, which included a
reduced prison sentence, we find no abuse of discretion.


       Affirmed.




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