NOT DESIGNATED FOR PUBLICATION
No. 123,875
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
LATOSHA L. NELSON,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed September 17,
2021. Affirmed.
Submitted by the parties for summary disposition pursuant to K.S.A. 2020 Supp. 21-6820(g) and
(h).
Before BRUNS, P.J., SCHROEDER and GARDNER, JJ.
PER CURIAM: Latosha L. Nelson appeals the district court's decision to revoke her
probation and impose a modified 130-month sentence. On appeal, Nelson asserts the
district court abused its discretion by revoking her probation. Recognizing the district
court has the discretion to require her to serve her underlying sentence in this case,
Nelson filed a motion for summary disposition in lieu of briefs under Kansas Supreme
Court Rule 7.041A (2021 Kan. S. Ct. R. 48). In response, the State agreed that Nelson's
appeal is suitable for summary disposition. As such, we granted Nelson's motion and
proceeded to review the record on appeal to determine if the district court erred. After
doing so, we conclude that the district court did not abuse its discretion. Thus, we affirm
the district court's decision.
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FACTS
In June 2019, Nelson pled guilty to one count of possession of methamphetamine
with intent to distribute in violation of K.S.A. 2017 Supp. 21-5705(a)(1). She possessed
over 33 grams of methamphetamine, which meant her violation was a severity level 2
drug felony. K.S.A. 2017 Supp. 21-5705(d)(3)(C). Based on the severity level of the
crime and Nelson's criminal history score, she was sentenced to 144 months'
imprisonment. However, the district court granted her a dispositional departure and
placed her on probation for 36 months.
Unfortunately, Nelson was unable to fulfill the terms of her probation and was
ordered to serve intermediate jail sanctions on three occasions. Thereafter, she once again
violated the terms of her probation. This time, Nelson stipulated to committing a new
crime—aggravated escape from custody. At her probation revocation hearing, the district
court revoked Nelson's probation and order her to serve a modified sentence of 130
months in prison.
ANALYSIS
On appeal, Nelson maintains the district court abused its discretion by revoking
her probation and ordering her to serve a modified prison sentence. She argues that the
district court should have allowed her to remain in the community in order to promote her
rehabilitation. Nevertheless, Nelson candidly recognizes that the district court had the
authority to revoke her probation because she committed a new crime while serving on
probation, and her original sentence was a dispositional departure. See K.S.A. 2017 Supp.
22-3716(c)(8)(A) and (c)(9)(B). Moreover, she acknowledges that the decision to the
revoke her probation rests in the sound discretion of the district court. See State v.
Coleman, 311 Kan. 332, 334, 460 P.3d 828 (2020).
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A judicial action constitutes an abuse of discretion only 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. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018). Nelson bears the
burden of showing an abuse of discretion. See State v. Thomas, 307 Kan. 733, 739, 415
P.3d 430 (2018). However, she does not allege that the district court's action in this case
was unreasonable, that it was based on an error of law, or that it was based on an error of
fact.
A review of the record in this case reveals that Nelson repeatedly violated the
conditions of her probation. Moreover, through the granting of Nelson's motion for
dispositional departure and the imposition of several intermediate sanctions, the district
court gave her multiple opportunities to succeed. Unfortunately, she could not do so. In
light of her history, we find that it was reasonable for the district court to conclude that
Nelson is not amenable to probation. Likewise, we find that Nelson has failed to show
that the district court's decision was based on an error of law or on an error of fact.
Under these circumstances, we conclude that the district court did not abuse its
discretion by revoking Nelson's probation or ordering her to serve a modified sentence.
Affirmed.
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