NOT DESIGNATED FOR PUBLICATION
Nos. 123,281
123,282
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
KENNETH GRAY,
Appellant.
MEMORANDUM OPINION
Appeal from Harvey District Court; MARILYN M. WILDER, judge. Opinion filed November 12,
2021. Affirmed.
Submitted by the parties for summary disposition pursuant to K.S.A. 2020 Supp. 21-6820(g) and
(h).
Before ATCHESON, P.J., CLINE and HURST, JJ.
PER CURIAM: Kenneth Gray appeals the Harvey County District Court's decision
to revoke his probation in two cases. We consolidated his cases on appeal and granted
Gray's motion for summary disposition under Supreme Court Rule 7.041A (2021 Kan. S.
Ct. R. 48). On appeal, Gray argues the district court abused its discretion when it revoked
his probation. The State did not respond. Finding no error by the district court, we affirm.
Gray was charged in three separate cases for offenses committed in 2018. Gray
entered into an agreement with the State to dispose of the three cases and agreed to enter
1
guilty pleas to two counts of possession with the intent to distribute methamphetamine, a
severity level 3 drug felony under K.S.A. 2018 Supp. 21-5705(a)(1). In exchange, the
State agreed to dismiss the remaining charges, including all of those in the third criminal
case against him. On August 2, 2018, Gray entered no-contest pleas to two counts of
possession with the intent to distribute. Before sentencing, Gray filed a motion for a
dispositional departure to probation.
The district court sentenced Gray on October 1, 2018. Based on his criminal
history score of C, the district court imposed a presumptive prison sentence of 68 months
for each conviction and ordered the sentences to be served consecutively. The district
court granted Gray's motion for dispositional departure and placed him on probation for
36 months.
On December 10, 2018, the State moved to revoke the probation based on Gray's
positive drug tests. On February 27, 2019, Gray waived an evidentiary hearing on the
alleged violation and did not contest the allegations that he provided positive drug tests
on five separate dates. After finding probation violations, the district court imposed a 60-
day jail sanction on Gray and extended his probation by 36 months. In September 2019,
Gray admitted he again violated probation and agreed to a two-day jail sanction without a
district court hearing.
On November 12, 2019, the district court held a second probation violation
hearing. The State alleged Gray tested positive for alcohol in September 2019 and for
methamphetamine in October 2019. The State also alleged Gray failed to adhere to his
curfew and was arrested for possession of marijuana, drug paraphernalia, and criminal
possession of a weapon. Gray did not contest the allegations, and so the district court
found he violated the terms of probation, ordered a 60-day sanction, and again extended
his probation by 36 months. Gray was allowed to serve the 60-day sanction by
participating in an inpatient drug treatment program once a bed was available.
2
The district court held the third and final violation hearing on August 4, 2020.
Gray did not contest the allegations that he tested positive for alcohol, methamphetamine,
and marijuana on May 14, and that he was arrested on June 6, 2020. After finding Gray
violated the terms of his probation and that he had already done so on multiple occasions
with corresponding sanctions, the district court revoked his probation and imposed the
original sentences but ordered they be served concurrently. The district court's resolution
conformed to the joint recommendation of the State and Gray on the disposition of his
stipulation to the violations. During the hearing, Gray personally hedged on the
recommendation and suggested he would welcome another chance on probation. In the
district court's journal entry of judgment, the court cited to Gray's use of illegal drugs and
alcohol as the reason it revoked Gray's probation.
Gray appeals. He argues the district court's decision to impose his modified
underlying sentences rather than allowing him to continue on probation after serving a
sanction was unreasonable. We review this issue for an abuse of judicial discretion. See
State v. Collins, 303 Kan. 472, 476, 362 P.3d 1098 (2015). A district court abuses its
discretion when the decision is unreasonable or is based on either a misunderstanding of
the governing of law or an error of fact. State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d
931 (2018). Gray has the burden of showing an abuse of discretion. See State v. Thomas,
307 Kan. 733, 739, 415 P.3d 430 (2018).
Under K.S.A. 2018 Supp. 22-3716(c), the district court must follow a graduated
sanction scheme in punishing a defendant's probation violations. See generally State v.
Dominguez, 58 Kan. App. 2d 630, 634, 473 P.3d 932 (2020) (new intermediate sanction
scheme does not apply retroactively). The district court typically would have to impose
either a 2-day or 3-day jail sanction and then a 120-day or a 180-day prison sanction
before revoking a defendant's probation. See K.S.A. 2018 Supp. 22-3716(c)(1)(A)-(D).
Here, an exception applied that allowed the district court to revoke Gray's probation
3
without first imposing an intermediate sanction. Because the district court granted Gray's
motion for dispositional departure to probation, the district court had discretion to revoke
his probation and impose his original sentence. See K.S.A. 2018 Supp. 22-3716(c)(9)(B).
Gray admitted to the State's allegations that he used drugs while on probation, and,
consequently, the district correctly court found he violated his probation. The district
court was not required to then impose an intermediate sanction before revoking his
probation.
In short, the district court had the authority to order Gray to serve his underlying
sentences, and Gray has failed to meet his burden to show the decision was unreasonable.
Throughout Gray's probation term he has failed to abstain from using alcohol and drugs.
The district court's decision to revoke Gray's probation and to order him to serve his
modified underlying sentence was reasonable based on the circumstances and facts in this
case and entailed no mistake of law or error of fact.
In addition, the district court adhered to a joint recommendation the State and
Gray presented during the hearing for disposition of the probation violation. We,
therefore, doubt Gray can now dispute or challenge that otherwise legally proper
resolution consistent with the doctrine of judicial estoppel. Judicial estoppel "precludes a
party from taking one position in a case to induce the court to act in a certain way and
then taking a contrary or conflicting position in a related proceeding involving the same
opposing parties" and, thus, prevents a party from prevailing in one phase of a case based
on a particular position and later arguing a different position in a later phase of the case.
Estate of Belden v. Brown County, 46 Kan. App. 2d 247, Syl. ¶ 3, 261 P.3d 943 (2011).
Affirmed.
4