NOT DESIGNATED FOR PUBLICATION
No. 123,413
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
HENRY TORRES BARNHART,
Appellant.
MEMORANDUM OPINION
Appeal from Ford District Court; ANDREW STEIN, judge. Opinion filed January 28, 2022.
Affirmed.
Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.
Michael R. Serra, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., POWELL and ISHERWOOD, JJ.
PER CURIAM: Henry Torres Barnhart appeals the district court's revocation of his
probation and imposition of his underlying prison sentence. Barnhart claims he was
entitled to the imposition of intermediate sanctions before having his probation revoked
and, because that was not done, the district court abused its discretion by revoking his
probation. However, an exception to this rule exists if an offender is given a dispositional
departure to probation. Our review of the record shows that Barnhart was given a
dispositional departure to probation, and the district court implicitly relied upon this fact
when revoking his probation. Thus, we affirm.
1
As part of a plea agreement with the State, and for crimes he committed in January
2019, Barnhart pled guilty to one count of possession of methamphetamine, a severity
level 5 drug felony, and one count of theft, a class A misdemeanor. In exchange for his
plea, the parties agreed to recommend that the district court grant Barnhart a dispositional
departure to probation. At sentencing, the district court expressed its displeasure with the
agreement and said that it believed Barnhart would not comply with the terms of his
probation. Nevertheless, the district court followed the agreement and sentenced Barnhart
to 42 months in prison but granted him a dispositional departure to probation for 12
months.
About six months later, the State moved to revoke Barnhart's probation after he
admitted to using methamphetamine and failed to report twice. Over the next 10 months
the State filed three amended affidavits that alleged more probation violations. In the
final amended affidavit, the State alleged Barnhart had failed to report contact with law
enforcement after he was pulled over and issued four traffic citations, including two
misdemeanors—driving while suspended and failure to present liability insurance. The
affidavit did not allege that Barnhart had committed a new crime. At the revocation
hearing, Barnhart stipulated to the violations and asked the district court to allow him to
remain on probation so he could move to Liberal, get a job, and enter inpatient drug
treatment. The State asked the district court to impose Barnhart's full sentence because he
had a criminal history score of A, had been granted a dispositional departure at
sentencing, and had been unable to kick his drug habit. The district court remarked:
"Based on the information provided me, it is clear, Mr. Barnhart, that you have had ample
opportunities to comply with probation, specifically to seek treatment for the drug habit.
And, you've simply just refused or been unable to comply with that or make it happen.
"For those reasons, I am going to adopt the recommendation of the State. I am
going to revoke your probation and order that you serve your underlying sentence in the
Department of Corrections."
2
On the journal entry, the district court checked the box that it revoked Barnhart's
probation because: "Original sentence result of dispositional departure."
Barnhart timely appeals.
Barnhart argues the district court abused its discretion when it imposed his
underlying prison sentence after revoking his probation because K.S.A. 2018 Supp. 22-
3716(c) required the court to impose intermediate sanctions. The State counters that
revocation was proper for two reasons: (1) Barnhart was cited for two misdemeanor
traffic crimes while on probation, and (2) Barnhart received a dispositional departure to
probation.
It is undisputed that once a probation violation has been established, the decision
to revoke probation lies within the sound discretion of the district court. See State v.
Coleman, 311 Kan. 332, 334, 460 P.3d 828 (2020); State v. Skolaut, 286 Kan. 219, 227-
28, 182 P.3d 1231 (2008). A district court abuses its discretion if it bases its decision on
legal or factual errors or if no reasonable person would agree with its decision. State v.
Ballou, 310 Kan. 591, 615, 448 P.3d 479 (2019). Barnhart bears the burden to show an
abuse of discretion by the district court. See State v. Thomas, 307 Kan. 733, 739, 415
P.3d 430 (2018).
In this case, the district court's discretion on whether to revoke probation was
limited by the intermediate sanctions outlined in K.S.A. 2018 Supp. 22-3716. According
to the law in effect at the time Barnhart committed his crimes, a district court was
required to impose graduated intermediate sanctions before revoking an offender's
probation. See K.S.A. 2018 Supp. 22-3716(c); State v. Huckey, 51 Kan. App. 2d 451,
454, 348 P.3d 997 (2015). However, there are exceptions which permit a district court to
revoke a defendant's probation without having previously imposed the statutorily
required intermediate sanctions. One exception allows the district court to revoke an
3
offender's probation without imposing sanctions if probation was originally granted as the
result of a dispositional departure. K.S.A. 2018 Supp. 22-3716(c)(9)(B).
Barnhart's principal argument is that the district court failed to make the necessary
findings to revoke his probation. Specifically, he claims the district court erred by failing
to make particularized findings to support the public safety exception to the intermediate
sanctions requirement. See K.S.A. 2018 Supp. 22-3716(c)(9)(A). The State counters that
because Barnhart committed new crimes while on probation, the district court had the
authority to revoke his probation. See K.S.A. 2018 Supp. 22-3716(c)(8)(A) (exception to
intermediate sanctions requirement if "offender commits a new felony or misdemeanor
while the offender is on probation"). We reject both these arguments because the State
never alleged that Barnhart committed a new crime while on probation, nor does the
record show if he was convicted of any new offenses while on probation. As for whether
the district court ever made any particularized findings, while the record is clear it did
not, it is also apparent from the record that the district court was not relying on public
safety or offender welfare as grounds to revoke Barnhart's probation.
The State also argues, and we agree, that the dispositional departure exception to
the intermediate sanctions requirement applies here. As we have indicated, intermediate
sanctions are not required if a defendant is given a dispositional departure to probation.
K.S.A. 2018 Supp. 22-3716(c)(9)(B). Here, it is undisputed that Barnhart was given a
dispositional departure to probation. However, Barnhart argues that the district court
never invoked this exception in its ruling. We disagree. When recommending that the
district court revoke Barnhart's probation, the prosecutor specifically mentioned the fact
that Barnhart had been given a dispositional departure, and the district court adopted the
State's arguments when making its ruling. Thus, the district court implicitly invoked the
dispositional departure exception when revoking Barnhart's probation.
4
Given that the district court had the legal authority to revoke Barnhart's probation,
and as Barnhart advances no other arguments as to why the district court's revocation of
his probation was error, we find no abuse of discretion in the district court's decision to
revoke Barnhart's probation and impose his underlying prison sentence.
Affirmed.
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