NOT DESIGNATED FOR PUBLICATION
Nos. 123,181
123,182
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
SEAN P. MCCAWLEY,
Appellant.
MEMORANDUM OPINION
Appeal from Douglas District Court; SALLY D. POKORNY, judge. Opinion filed July 30, 2021.
Affirmed.
Submitted by the parties for summary disposition under K.S.A. 2020 Supp. 21-6820(g) and (h).
Before SCHROEDER, P.J., MALONE, J., and BURGESS, S.J.
PER CURIAM: Sean P. McCawley appeals the district court's decision revoking his
probation and ordering him to serve his original sentences in two separate cases. We
granted McCawley's motion for summary disposition under Kansas Supreme Court Rule
7.041A (2021 Kan. S. Ct. R. 48). The State has responded and asks us to affirm the
district court's judgment.
In 2015CR511, McCawley was convicted of unlawful distribution of a controlled
substance using a communication facility. The district court sentenced him to 9 months'
imprisonment but granted probation for 18 months. In 2015CR703, McCawley was
convicted of possession of methamphetamine. The district court sentenced him to 14
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months' imprisonment, consecutive to the sentence in 2015CR511, but granted probation
for 18 months. In April 2018, the district court extended McCawley's probation in both
cases and ordered him to serve a two-day jail sanction after finding that he violated the
conditions of his probation.
In February 2019, the State alleged that McCawley violated his probation again by
failing to obey the law, failing to report as directed, and using alcohol or illegal drugs.
The allegation that he failed to obey the law was related to McCawley's arrest for
kidnapping, criminal threat, and criminal deprivation of property. As part of a plea
agreement in the kidnapping case, McCawley agreed to plead no contest to two counts of
attempted robbery and to stipulate that he violated the conditions of his probation in
2015CR511 and 2015CR703. At a hearing on March 10, 2020, the district court found
that McCawley committed new crimes while on probation. The district court revoked
McCawley's probation in each case and ordered him to serve his original sentences.
McCawley timely appealed and the cases have been consolidated on appeal.
On appeal, McCawley claims the district court "abused its discretion by revoking
[his] probations and imposing both underlying sentences consecutively because no
reasonable person would agree with that decision." Although McCawley did not oppose
the imposition of consecutive sentences in district court, he asserts on appeal that "a
reasonable person would have imposed a lesser sentence to punish nonviolent drug-
related conduct."
The procedure for revoking a defendant's probation is governed by K.S.A. 2020
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).
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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).
McCawley violated his probation by committing new crimes. As a result, the
district court could revoke McCawley's probation in each case without imposing an
additional intermediate sanction. See K.S.A. 2015 Supp. 22-3716(c)(8). As for the district
court's order that McCawley serve his original consecutive sentences, McCawley did not
ask the district court to modify the sentences from consecutive to concurrent at the
probation revocation hearing. The district court is not required to consider on the record
whether the defendant's sentence should be modified when the issue is not raised at the
hearing. State v. Reeves, 54 Kan. App. 2d 644, 647, 403 P.3d 655 (2017).
McCawley performed poorly on probation and violated the terms of his probation
by committing serious crimes. The district court's decision to revoke McCawley's
probation was not arbitrary, fanciful, or unreasonable, and it was not based on an error of
fact or law. McCawley has failed to show that the district court abused its discretion by
revoking his probation and ordering him to serve his original prison sentences.
Affirmed.
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