NOT DESIGNATED FOR PUBLICATION
Nos. 122,483
122,484
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
VICTOR A. WENTE,
Appellant.
MEMORANDUM OPINION
Appeal from Sherman District Court; SCOTT SHOWALTER, 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: Victor A. Wente appeals the revocation of his probation and
imposition of his underlying sentence in two cases. We consolidated these cases for
appeal and granted Wente's motion for summary disposition of his appeal under Supreme
Court Rule 7.041A (2020 Kan. S. Ct. R. 47). Finding no abuse of discretion by the
district court, we affirm.
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FACTUAL AND PROCEDURAL HISTORY
In district court case 17CR120, Wente pled guilty to possession of
methamphetamine, a severity level 5 drug felony. In April 2018, he was sentenced to an
underlying 20 months' in prison with probation granted for 18 months.
In district court case 17CR136, Wente pled guilty to interference with law
enforcement, a severity level 9 nonperson felony. On the same day as the other case, he
was sentenced to an underlying 10 months in prison with probation granted for 12
months. In February and October 2019, he agreed to extensions of his probation until his
court obligations were paid in full.
In November 2019, the State filed motions for revocation of his probation in both
cases alleging that he violated the conditions of his probation by:
• Failing to obey all laws–October 19, 2019, arrest for criminal possession of a
firearm by a felon;
• failing to make payments to satisfy his court obligations; and
• testing positive for methamphetamine and marijuana/THC on several
occasions.
Two months later, Wente's intensive supervision officer (ISO) filed a supplemental
affidavit alleging that Wente had pled guilty to criminal use of weapons, a misdemeanor.
The ISO filed a copy of the journal entry of plea and sentencing.
At the revocation hearing, the district court revoked Wente's probation and
imposed his underlying sentences because he had committed a new crime. Wente timely
appeals.
2
ANALYSIS
Once a probation violation has been established the district court's decision to
revoke the offender's probation and impose the underlying sentence is discretionary
unless otherwise limited by statute. See State v. Dooley, 308 Kan. 641, 647, 423 P.3d 469
(2018). A judicial action constitutes an abuse of discretion if the action (1) is
unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. The party
alleging the abuse of discretion bears the burden of proof. State v. Thomas, 307 Kan. 733,
739, 415 P.3d 430 (2018).
Kansas statutes limit the court's discretion in deciding how to sanction a felony
probation violator. K.S.A. 2016 Supp. 22-3716(c). 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."
K.S.A. 2016 Supp. 22-3716(c)(8)(A).
Here, the district court had the statutory authority to revoke Wente's probation.
Wente does not dispute that he was convicted of a new misdemeanor while on probation
in these cases. Given his repeated drug usage and violations of the law, the district court's
decision to revoke his probation and impose his underlying sentences was reasonable.
Affirmed.
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