NOT DESIGNATED FOR PUBLICATION
No. 124,214
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
MICHAEL E. KESSINGER,
Appellant.
MEMORANDUM OPINION
Appeal from Harvey District Court; MARILYN M. WILDER, judge. Opinion filed February 25,
2022. Affirmed.
Submitted by the parties for summary disposition pursuant to K.S.A. 2020 Supp. 21-6820(g) and
(h).
Before GREEN, P.J., ATCHESON and HURST, JJ.
PER CURIAM: Michael E. Kessinger timely appeals the trial court's revocation of
his probation. Kessinger pleaded no contest to possession of a controlled substance, in
violation of K.S.A. 2017 Supp. 21-5706(a). The trial court sentenced Kessinger to 12
months' probation with an underlying prison sentence of 24 months. Later, Kessinger
admitted to the following probation violations: (1) using methamphetamine, (2) failing to
report as directed, (3) being unsuccessfully discharged from substance abuse treatment,
and (4) committing the new crimes of fleeing and eluding a police officer, possession of
marijuana, criminal damage to property, possession of stolen property, and aggravated
assault with a deadly weapon. The trial court revoked Kessinger's probation, bypassing
intermediate sanctions by invoking the new crime exception under K.S.A. 2018 Supp. 22-
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3716(c)(8)(A). Kessinger contends that the trial court unreasonably revoked his
probation. We disagree. As a result, we affirm.
Appellate courts review probation revocations under an abuse of discretion
standard. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). A trial court
abuses its discretion if its decision is based on an error of fact or law or is arbitrary,
fanciful, or unreasonable. State v. Frazier, 311 Kan. 378, 381, 461 P.3d 43 (2020).
Kessinger bears the burden of showing such abuse of discretion. See State v. Thomas,
307 Kan. 733, 739, 415 P.3d 430 (2018).
Kessinger states that he had severe substance abuse issues which made it difficult
to comply with the rules of probation. Nevertheless, he retained employment. Also, he
had family support from his mother. For these reasons, Kessinger argues that the trial
court's decision to revoke his probation was unreasonable. He argues that instead the trial
court should have shown leniency and given him a second attempt at probation so that he
could get proper treatment outside of prison. Kessinger's argument is unpersuasive
because one of his probation violations was that he failed to attend treatment.
Kessinger here makes an appeal ad misericordiam, an appeal to pity, with his
leniency argument. Nevertheless, because the questions under consideration in this appeal
are factual issues—whether Kessinger violated a condition of his probation by (1) using
methamphetamine, (2) failing to report as directed, (3) being unsuccessfully discharged
from substance abuse treatment, or (4) committing the new crimes of fleeing and eluding
a police officer, possession of marijuana, criminal damage to property, possession of
stolen property, and aggravated assault with a deadly weapon—an appeal to pity is
irrelevant because it simply deflects away from the facts.
Besides, pity is a bad argument for Kessinger because the objective facts here
show that one of his probation violations was for failing his substance abuse treatment
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program. Indeed, he admitted to this violation. Kessinger's discharge from a substance
abuse treatment program while on probation would not rouse a reasonable person's
feelings of pity in such a manner to agree to the truth of the proposition for which he is
arguing: another chance at treatment.
Also, the trial court, upon finding that Kessinger had committed new crimes, had
the statutory authority to revoke his probation without imposing intermediate sanctions.
See K.S.A. 2018 Supp. 22-3716(c)(8)(A). Thus, Kessinger fails to show the trial court
abused its discretion by revoking his probation.
For the preceding reasons, we affirm the trial court's decision under Supreme
Court Rule 7.042(b)(2), (6) (2022 Kan. S. Ct. R. at 49).
Affirmed.
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