State v. Zapata-Beltran

497 P.3d 576 (Table)

STATE of Kansas, Appellee,

v.John P. ZAPATA-BELTRAN, Appellant.

No. 122,414

Court of Appeals of Kansas.

Opinion filed October 22, 2021.

Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.

Thomas R. Stanton, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Warner, P.J., Malone and Buser, JJ.

MEMORANDUM OPINION

Per Curiam:

John Zapata-Beltran pleaded guilty to numerous felony offenses in 2017, including several drug crimes and criminal possession of a firearm. The district court sentenced him to a 73-month prison sentence, then suspended the sentence and granted Zapata-Beltran 36 months of probation. About 30 months into his probation term, police found a loaded gun in his bedroom closet—a new crime and a violation of the conditions of his probation. After hearing evidence concerning the gun, the district court revoked his probation and ordered him to serve his underlying prison sentence. He now appeals that decision and also argues that his prison sentence is illegal. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Early on the morning of May 13, 2015, officers from the Hutchinson Police Department successively obtained and executed three search warrants on Zapata-Beltran's house and car. In the house, police found plastic baggies, a torn corner of a baggie containing crystal residue, and two marijuana cigarettes. And while searching the trunk of the car, police discovered two backpacks containing various quantities of recreational and prescription drugs, a handgun, and two sets of digital scales. As a result of these discoveries, Zapata-Beltran pleaded guilty in 2017 to possession with intent to sell methamphetamine, hydromorphone, and marijuana; possession of hydrocodone; two counts of possession of drug paraphernalia; criminal possession of a firearm; and aggravated endangering of a child.

The presentence investigation report in Zapata-Beltran's case classified his criminal-history score as B. The report indicated that Zapata-Beltran had previously committed 2 person felonies (a 2006 conviction for contributing to a child's misconduct and a 2010 conviction for criminal threat), 2 nonperson felonies, 2 person misdemeanors, and 21 nonperson misdemeanors. At the sentencing hearing, both the prosecutor and defense counsel indicated there were no objections to the reported criminal-history score. And Zapata-Beltran did not object to or otherwise challenge any of the information in the report. Instead, he asked the court for a dispositional departure sentence to allow him to continue working and stay out of prison. The court granted this request, imposing an underlying 73-month prison sentence but suspending that sentence and ordering Zapata-Beltran to serve 36 months of probation.

As part of his probation, Zapata-Beltran agreed to refrain from violating the law; he also separately agreed that he would not possess any firearms (though possession of a firearm by a person recently convicted of a felony is itself a crime). But in September 2019, the Barton County Sheriff's Office obtained a warrant and searched Zapata-Beltran's home in Great Bend, where he lived with his wife and children. During the search, deputies found a loaded pistol in Zapata-Beltran's bedroom closet on top of a personal safe. As a result of this discovery, as well as a few other alleged violations, the State asked the court to revoke his probation and impose his original prison sentence.

The district court held an evidentiary hearing on the State's request. At the hearing, Zapata-Beltran's stepfather testified that he met a friend at Zapata-Beltran's house the day before the search and purchased the gun. Since nobody else was home, he placed the gun in Zapata-Beltran's closet, spent the night at the house, and left the next morning. Zapata-Beltran stated that he and his wife and children returned home the morning of the search.

The district court found the testimony from Zapata-Beltran's stepfather lacked credibility. Though the court found the evidence was insufficient to prove the State's other alleged violations, it found that Zapata-Beltran had possessed a firearm—a violation of his probation and a new crime. In light of the serious nature of this violation and of Zapata-Beltran's convictions, the court revoked his probation and ordered him to serve his underlying prison sentence.

DISCUSSION

Zapata-Beltran appeals, challenging the legal and discretionary bases for the district court's revocation of his probation. He also raises two challenges to the legality of his sentence. After carefully reviewing the record and the parties' arguments, we conclude that Zapata-Beltran has not apprised us of error. We therefore affirm the district court's decision.

1. The district court did not abuse its discretion when it revoked Zapata-Beltran's probation.

Zapata-Beltran argues the district court erred in two respects when it revoked his probation and imposed his underlying sentence. He asserts the court abused its discretion when it ordered him to serve his prison sentence rather than remain on probation, as this was his only probation violation in the 30 months he had been supervised. He also asserts—for the first time on appeal—that the court erred as a matter of law, claiming the restriction on his possession of a firearm violates the United States and Kansas Constitutions.

Probation is an act of judicial leniency afforded a person as a privilege rather than a right. See State v. Gary , 282 Kan. 232, 237, 144 P.3d 634 (2006). A district court's decision to revoke probation usually involves two steps—a factual determination that the probationer has violated a condition of probation and a discretionary determination as to the appropriate disposition in light of the proved violations. State v. Skolaut , 286 Kan. 219, Syl. ¶ 4, 182 P.3d 1231 (2008). The State has the burden to prove a person violated the terms of his or her probation by a preponderance of the evidence. State v. Lloyd , 52 Kan. App. 2d 780, Syl. ¶ 1, 375 P.3d 1013 (2016). Appellate courts uphold a district court's factual findings when they are supported by substantial competent evidence in the record—" ‘evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved.’ " State v. Brown , 300 Kan. 542, 546, 331 P.3d 781 (2014).

After a violation has been established, the decision to reinstate probation or to revoke and incarcerate the offender rests within the sound discretion of the district court. See Skolaut , 286 Kan. at 227-28. A district court abuses that discretion if it rules in a way no reasonable judicial officer would under the circumstances, if it ignores controlling facts or relies on unproven factual representations, or if it acts outside the legal framework appropriate to the issue. See State v. Darrah , 309 Kan. 1222, 1227, 442 P.3d 1049 (2019) ; State v. Ward , 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011). Zapata-Beltran carries the burden of showing that the district court abused its discretion. See State v. Stafford , 296 Kan. 25, 45, 290 P.3d 562 (2012).

In May 2015, when police originally searched Zapata-Beltran's house and car, Kansas imposed a system of graduated sanctions for probation violations in felony cases. Under this system, a district court faced with a violation of probation could impose an intermediate sanction or revoke probation, depending on the nature of the violation and the number of previous violations that had occurred. See State v. McFeeters , 52 Kan. App. 2d 45, 47-48, 362 P.3d 603 (2015). Generally, a court had to impose at least two intermediate sanctions before revoking probation. K.S.A. 2014 Supp. 22-3716(c)(1)(A)-(E). But a court could revoke probation without imposing these sanctions if the probationer committed a new crime. K.S.A. 2014 Supp. 22-3716(c)(8).

Zapata-Beltran does not challenge the district court's factual finding that he possessed the firearm, and thus violated the terms of his probation. And he acknowledges that possession of a firearm by a person who has previously committed a felony is a crime. See K.S.A. 2020 Supp. 21-6304(a)(3)(A). But he argues the court abused its discretion when it revoked his probation instead of imposing a lesser sanction.

In particular, Zapata-Beltran points out that possessing the firearm was the first violation of his probation, occurring 30 months into a 36-month probation term. And he notes that though his convictions eventually resulted from a guilty plea, the district court had originally suppressed the evidence that led to those convictions. Given these factors, he argues that it was inherently unreasonable to impose his underlying sentence. But we disagree.

As the district court acknowledged when it revoked his probation, Zapata-Beltran pleaded guilty to several serious offenses, including criminal possession of a weapon. Though the court originally granted him leniency by way of probation, Zapata-Beltran knew that he was prohibited both by law and by the terms of his probation from possessing a firearm. This violation was made all the more egregious considering the firearm was loaded and Zapata-Beltran had several young children living with him in the house. And this crime—criminal possession of weapon—was one of the crimes that led to Zapata-Beltran's current sentence. The district court did not abuse its discretion when it revoked Zapata-Beltran's probation after he committed this new offense.

Zapata-Beltran also argues that the revocation of his probation based on his possession of a firearm violated his right to bear arms under section 4 of the Kansas Constitution Bill of Rights. Zapata-Beltran acknowledges that he did not raise this constitutional argument—either as a facial challenge or as the statute applies to him—before the district court.

Constitutional claims generally cannot be raised for the first time on appeal. State v. Daniel , 307 Kan. 428,...