NOT DESIGNATED FOR PUBLICATION
No. 122,534
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ANTHONY J. OTANO,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed
December 23, 2020. Affirmed.
Submitted by the parties for summary disposition under K.S.A. 2019 Supp. 21-6820(g) and (h).
Before ARNOLD-BURGER, C.J., GREEN and MALONE, JJ.
PER CURIAM: Anthony J. Otano appeals the district court's decision revoking his
probation and ordering him to serve a modified sentence. We granted Otano's motion for
summary disposition under Kansas Supreme Court Rule 7.041A (2020 Kan. S. Ct. R. 47).
The State asks us to affirm the district court's judgment.
On September 18, 2017, Otano pled guilty to one count of possession of cocaine, a
felony, and one count of possession of marijuana, a class A misdemeanor. On January 30,
2018, the district court sentenced Otano to 17 months' imprisonment on the felony and a
consecutive term of 12 months in jail on the misdemeanor, but the district court granted
probation for 12 months to be supervised by court services.
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Otano performed poorly on probation. He violated the conditions of his probation
at least four separate times and received both jail sanctions and one intermediate prison
sanction. His probation term was also extended a couple of times. At a hearing on
January 7, 2020, Otano admitted to violating the conditions of his probation by
submitting a diluted urine sample, failing to refrain from the use of cocaine, and failing to
report to his supervisor as directed. The district court revoked Otano's probation and
ordered him to serve his sentence, but the district court modified the misdemeanor
sentence from 12 months to 6 months in jail. Otano timely appealed.
On appeal, Otano claims the district court "abused its discretion by imposing a
modified underlying sentence in Mr. Otano's case upon finding he'd violated probation
because no reasonable person would have agreed with its decision." Otano argues that the
district court should have terminated his probation because of how long he already had
served. Alternatively, he argues that the district court should have run his misdemeanor
sentence concurrent with the felony sentence because his crimes were nonviolent.
The procedure for revoking a defendant's probation is governed by K.S.A. 2019
Supp. 22-3716. Generally, once there has been evidence of a violation of the conditions
of probation, the decision to revoke probation rests in the district court's sound discretion.
State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). An abuse of discretion
occurs when judicial action is arbitrary, fanciful, or unreasonable; is based on an error of
law; or is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
The party asserting the district court abused its discretion bears the burden of showing
such an abuse of discretion. State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).
Otano violated his probation at least four separate times. Still, the district court
showed leniency by modifying the misdemeanor sentence from 12 months to 6 months in
jail. The journal entry for the final probation revocation hearing shows that Otano had
accumulated 272 days of jail credit. The district court ordered that the first 180 days of
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jail credit be applied toward Otano's sentence on the misdemeanor charge, meaning that
Otano had completely served the sentence on the misdemeanor charge. This order left
Otano with 92 days of credit to be applied toward his 17-month prison sentence.
Although Otano would have preferred that the district court simply terminate his
probation and release him on time served, we cannot say that no reasonable person would
have agreed with the district court's decision to order Otano to serve the rest of his
sentence. Otano has failed to show that the district court abused its discretion by revoking
his probation and ordering him to serve a modified sentence.
Affirmed.
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