State v. Holliday

S
                           NOT DESIGNATED FOR PUBLICATION

                                             No. 122,771

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                           STATE OF KANSAS,
                                               Appellee,

                                                    v.

                                    GEROMI MYKIEL HOLLIDAY,
                                           Appellant.


                                    MEMORANDUM OPINION

        Appeal from Johnson District Court; THOMAS KELLY RYAN, judge. Opinion filed April 23, 2021.
Affirmed.


        Rick Kittel, of Kansas Appellate Defender Office, for appellant.


        Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.


Before HILL, P.J., BRUNS and SCHROEDER, JJ.


        PER CURIAM: Geromi Mykiel Holliday appeals the district court's revocation of
his probation. Holliday entered into a plea agreement with the State whereby he pled
guilty to possession of oxycodone and was placed on probation. Subsequently, Holliday
committed several violations of the terms of his probation, including the commission of a
new crime. As a result, the district court revoked his probation and ordered him to serve
his underlying prison sentence. Finding no abuse of discretion, we affirm the district
court's decision to revoke Holliday's probation and to require him to serve his underlying
sentence.

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                                             FACTS

       In October 2016, Holliday entered into a plea agreement and pled guilty to
possession of oxycodone. The district court accepted his plea and sentenced him to 32
months in prison. However, the district court suspended his sentence and placed him on
probation for a period of 24-months. On August 2, 2018, the district court signed an
agreed journal entry extending the term of Holliday's probation for an additional 12
months.


       In May 2019, the State filed a motion to revoke Holliday's probation. Specifically,
the State alleged that he had violated the terms of his probation by: (1) being
unemployed and not seeking employment; (2) failing to provide his current residential
address to his probation officer; (3) being convicted of a new crime while on probation;
(4) failing to make court ordered payments; and (5) testing positive for the presence of
PCP and failing to submit to another test.


       At the probation revocation hearing, Holliday conceded to four of the alleged
probation violations. Regarding the allegation that he had been convicted of a new crime,
Holliday acknowledged that he had been charged with aggravated battery in Wyandotte
County but had pled guilty to misdemeanor battery. Ultimately, the district court found
that Holliday's probation should be revoked. In addition, it found that it was appropriate
to impose his underlying prison sentence. Thereafter, Holliday timely appealed.


                                        ANALYSIS

       On appeal, Holliday contends that the district court erred in revoking his probation
and imposing his underlying prison sentence. In particular, he argues that the district
court failed to make a finding with particularity that he committed a new crime. A
decision to revoke probation is generally reviewed by our court for an abuse of


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discretion. See State v. Skolaut, 

286 Kan. 219

, 227-28, 

182 P.3d 1231

(2008). A judicial
action constitutes an abuse of discretion if the action is (1) arbitrary, fanciful, or
unreasonable; (2) based on an error of law; or (3) based on an error of fact. State v. Ward,

292 Kan. 541

, 550, 

256 P.3d 801

(2011).


       When Holliday committed his oxycodone crime in October 2013, the district
court's discretion was limited by the terms of K.S.A. 2013 Supp. 22-3716, which
provided for the imposition of intermediate sanctions for a probation violation under
certain circumstances. Nevertheless, the imposition of intermediate sanctions is not
required under K.S.A. 2013 Supp. 22-3716(c)(8) "[i]f the offender commits a new felony
or misdemeanor or absconds from supervision while the offender is on probation." Here,
it is undisputed that Holliday had pled guilty to misdemeanor battery in Wyandotte
County while he was on probation in this case.


       Although the record reflects that the parties discussed the underlying facts of the
misdemeanor battery conviction at the probation revocation hearing, the material fact is
that Holliday admitted to the conviction on the record. Because of this admission, we find
that the requirements of K.S.A. 2013 Supp. 22-3716(c)(8) were met. Although Holliday
cites State v. Dooley, 

308 Kan. 641

, 647, 

423 P.3d 469

(2018), in support of his argument
on appeal, we do not find it to be helpful to our analysis. As indicated above, Holliday
agreed that he had been convicted of a new crime and the underlying facts are not
material to the resolution of the issue presented in this appeal.


       Next, Holliday cites State v. McFeeters, 

52 Kan. App. 2d 45

, 48-49, 

362 P.3d 602

(2015), in which a panel of this court remanded a probation revocation matter to the
district court because it failed to set forth with particularity why an intermediate sanction
was inappropriate. The panel in McFeeters was considering the application of K.S.A.
2014 Supp. 22-3716(c)(9), which permits the district court to bypass the statute's
intermediate sanctions if the district court "finds and sets forth with particularity the

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reasons for finding that the safety of members of the public will be jeopardized or that the
welfare of the offender will not be served by such sanction." But here, the district court
relied on K.S.A. 2013 Supp. 22-3716(c)(8)—not K.S.A. 2013 Supp. 22-3716(c)(9)—in
revoking Holliday's probation and reinstating his underlying sentence because he had
admittedly committed a new crime.


       Based on our review of the record, we find that the district court relied on
Holliday's admission that he had committed a new crime and was not particularly
concerned about the underlying facts leading to his battery conviction. This finding is
also supported by our review of the journal entry filed by the district court after the
hearing. We conclude that Holliday's admission that he committed a new crime was
sufficient to meet the requirements of K.S.A. 2013 Supp. 22-3716(c)(8). See State v.
Walker, No. 118,411, 

2018 WL 6005242

, at 2-3 (Kan. App. 2018) (unpublished opinion).
Finally, we do not find that the district court abused its discretion either by revoking
Holliday's probation or by imposing his underlying sentence under the circumstances
presented in this case.


       Affirmed.




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