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NOT DESIGNATED FOR PUBLICATION

No. 122,642

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

SABEN JOSEPH AMARO,

Appellant.

MEMORANDUM OPINION

Appeal from Ford District Court; SIDNEY R. THOMAS, judge. Opinion filed July 2, 2021.

Affirmed.

Natalie K. Randall, of Dodge City, for appellant.

Michael R. Serra, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before MALONE, P.J., WARNER and HURST, JJ.

PER CURIAM: Saben Joseph Amaro appeals the district court's decision revoking 

his probation and ordering him to serve his original sentence. Amaro claims the district 

court erred by imposing the full sentence at the probation violation hearing without 

allowing him to offer mitigating circumstances to the court. But as our court has ruled

before, a defendant has no right to allocution under the statute governing probation 

violation hearings. Thus, we find no error and affirm the district court's judgment.
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FACTS

On January 16, 2018, the State charged Amaro with committing aggravated 

kidnapping, aggravated robbery, aggravated sexual battery, aggravated domestic battery, 

aggravated battery, and domestic battery against his then-girlfriend, K.S., in Ford County 

criminal case No. 18CR21. Amaro allegedly committed these crimes while he was on 

felony probation for attempting to flee and allude a law enforcement officer in Ford 

County criminal case No. 17CR103. Amaro eventually pled no contest to aggravated 

kidnapping and aggravated battery in the new case. Under the plea agreement, the State 

agreed to dismiss the remaining charges and not oppose Amaro's motion for a 

dispositional departure to probation. At the sentencing hearing on July 24, 2018, the 

district court followed the plea agreement and sentenced Amaro in 18CR21 to a 

presumptive term of 253 months' imprisonment but granted probation for 36 months.

On April 3, 2019, the State moved to revoke Amaro's probation alleging that he

had violated the conditions of his probation by associating with a convicted felon, by 

having contact with K.S., and by committing several new crimes against K.S. More 

specifically, the State alleged that on March 26, 2019, along with committing the new 

crimes of aggravated burglary and criminal damage to property, Amaro kidnapped, 

battered, and assaulted K.S. Based on these alleged crimes, the State filed new charges 

against Amaro in Ford County criminal case No. 19CR194. Amaro eventually pled guilty 

to one count of residential burglary in that case.

On September 16, 2019, the district court held a joint probation violation hearing 

in 18CR21 and sentencing hearing in 19CR194. When the hearing started, Amaro 

admitted that he had violated the conditions of his probation in 18CR21 as alleged in the 

State's revocation motion. Amaro's counsel did not ask the district court to reinstate the 

probation, but he asked the court to modify the controlling sentence of 253 months'

imprisonment and impose a lesser sentence based on Amaro's youth. The State asked the 
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district court to revoke Amaro's probation and impose the original sentence. After hearing 

arguments from counsel, the district court revoked Amaro's probation and denied his

request to modify the sentence, ordering him to serve his original sentence of 253 months'

imprisonment with 36 months' postrelease supervision because (1) Amaro was on felony 

probation in 17CR103 when he committed his crimes in 18CR21; (2) Amaro received 

probation in 18CR21 as a result of a dispositional departure; (3) Amaro committed many 

of the same crimes in 18CR21 and 19CR194 against the same victim; and (4) the serious 

nature of Amaro's crimes revealed that he was a threat to public safety.

The district court then turned to the sentencing in 19CR194. But before imposing 

the sentence, the district court notified Amaro of his right to allocution and asked if he

had any statement he wanted to make to the court. But instead of addressing the district

court about the new conviction and any sentence in 19CR194, Amaro addressed the court

about its decision to impose his original prison sentence in 18CR21 without modification. 

Amaro told the district court that his attorney had coerced him into pleading no contest in 

18CR21 because he was afraid of spending "life" in prison. He also stated that his 

aggravated kidnapping conviction in 18CR21 was unfair because he never kidnapped 

anyone against their will.

After Amaro finished speaking, the district court told him that his statements were 

"well-received," that it had reconsidered his sentence in 18CR21 based on his statements, 

but that it was still imposing his original prison sentence in 18CR21 without modification 

for the reasons it had given. The district court then sentenced Amaro to 32 months'

imprisonment with 12 months' postrelease supervision for his burglary conviction in 

19CR194, to run consecutive to the sentence in 18CR21. Amaro timely brings this appeal 

which covers only the probation revocation in 18CR21.
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ANALYSIS

Amaro's sole argument on appeal is that he is entitled to a new probation violation 

hearing because the district court abused its discretion by imposing his original prison 

sentence without first "taking up whether there existed any meaningful mitigating 

factors" to support his request for a downward modification of this sentence. Amaro 

contends that given his youth and the extended length of his original sentence, the district 

court should have directly asked him "whether he desired to offer any additional

statements or arguments in mitigation of [its] imposition of [his original sentence]."

Although Amaro does not use the term "allocution" in his brief, he has effectively 

argued that he had a right to allocution before the district court revoked his probation and 

ordered him to serve his original sentence. Amaro's brief uses the term "due process" in 

one sentence, but he makes no direct claim that he has a constitutional right to allocution 

at a probation violation hearing. The State counters that Amaro has no statutory right to 

allocution before the district court could revoke his probation.

Both parties assert that we should review the district court's decision to revoke 

Amaro's probation for an abuse of discretion. But resolution of Amaro's claim requires us 

to interpret provisions of the Kansas Code of Criminal Procedure, K.S.A. 22-2101 et seq. 

Interpretation of a statute is a question of law over which an appellate court exercises 

unlimited review. State v. Alvarez, 309 Kan. 203, 205, 432 P.3d 1015 (2019).

K.S.A. 22-3422 provides that at any sentencing hearing, the district court must 

inform the defendant of the verdict of the jury or the finding of guilt by the court and ask 

the defendant whether there is any legal cause not to proceed with sentencing. K.S.A. 

2020 Supp. 22-3424(e)(4) states that before imposing sentence, the court must "address 

the defendant personally and ask the defendant if the defendant wishes to make a 

statement on the defendant's own behalf and to present any evidence of mitigation of 
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punishment." The rights enumerated in these statutes are historically known as 

"allocution." State v. Borders, 255 Kan. 871, 876, 879 P.2d 620 (1994). The district 

court's failure to provide the defendant with the right of allocution at a sentencing hearing 

is error, but not reversible error unless the defendant shows prejudice. 255 Kan. at 881.

Probation revocation hearings are governed by K.S.A. 2020 Supp. 22-3716. This 

statute provides that the State has the burden of establishing the probation violation; the 

defendant will be represented by counsel; and the defendant will have the right to present 

witnesses and other evidence on the alleged violation. K.S.A. 2020 Supp. 22-3716(b)(2). 

If the original crime of conviction was a felony and a violation is established, the court 

may impose sanctions including revocation of the defendant's probation. K.S.A. 2020 

Supp. 22-3716(c). Upon revoking a defendant's probation, the district court may order the 

defendant to serve the original sentence imposed, or any lesser sentence. K.S.A. 2020 

Supp. 22-3716(c)(1)(C). But K.S.A. 2020 Supp. 22-3716 provides the defendant with no 

right to allocution at a probation violation hearing corresponding with the statutory right 

provided to the defendant at a sentencing hearing.

Amaro's claim that he had a right to allocution at his probation violation hearing 

has been rejected by this court in State v. Caruthers, 22 Kan. App. 2d 910, 911, 924 P.2d 

1278 (1996), although Amaro fails to cite or discuss this case in his brief. In Caruthers, 

this court rejected Caruthers' contention that the district court erred by not asking him if 

he had anything to say before it revoked his probation and ordered him to serve his 

original prison sentence. In doing so, this court first explained that Caruthers was 

essentially arguing that he had the right to allocution at his probation violation hearing. 

This court then explained that probation violation hearings are governed by K.S.A. 22-

3716, which contains no requirement that the district court allow probationers to speak at 

their probation violation hearings. This court noted that the lack of a statutory right to 

allocution at probation violation hearings distinguished probationers from criminal 

defendants at sentencing hearings who have a statutory right to allocution. This court
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found that Caruthers' argument was meritless because Kansas' statutes did not give 

Caruthers the right to allocution before the district court revoked his probation and 

ordered him to serve his original prison sentence. 22 Kan. App. 2d at 911.

The Caruthers court also rejected "the notion" that the Due Process Clause of the 

Fourteenth Amendment to the United States Constitution required the district court to 

provide probationers the right to allocution. 22 Kan. App. 2d at 911. This court also noted 

that even if Caruthers had a right to allocution at his probation violation hearing, 

Caruthers was not entitled to a new probation violation hearing as he had not proven that 

the district court's failure to provide him the opportunity of allocution prejudiced his 

substantial rights. 22 Kan. App. 2d at 912; see also State v. Kyhnell, No. 116,199, 2017 

WL 382275, at *2 (Kan. App. 2017) (unpublished opinion) (rejecting Kyhnell's argument 

that the district court abused its discretion by not allowing him allocution before revoking 

his probation and ordering him to serve his underlying prison sentence based on 

Caruthers' holding that probationers lack the right to allocution).

Although K.S.A. 22-3716 has been amended since this court issued its Caruthers

decision, the version of K.S.A. 22-3716 that was in effect when Amaro committed his 

crimes in this case—K.S.A. 2017 Supp. 22-3716—still did not require district courts to 

provide probationers the right to allocution. In Kansas, probationers continue to lack a 

statutory right to allocution before the revocation of their probation. See K.S.A. 2020 

Supp. 22-3716. And although Amaro implies that the district court's failure to allow him 

allocution at his probation violation hearing violated his due process rights, he fails to

support this argument with any legal authority on point. Failure to support a point with 

pertinent authority or show why it is sound despite a lack of supporting authority or in the 

face of contrary authority is akin to failing to brief the issue. State v. Salary, 309 Kan. 

479, 481, 437 P.3d 953 (2019).
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Finally, as the State points out, even if Amaro had a right to allocution at his 

probation violation hearing, he has not shown that he was prejudiced by the district 

court's failure to allow him to speak before revoking his probation and ordering him to 

serve his original sentence. After the district court revoked Amaro's probation in 

18CR21, the court sentenced him in 19CR194. As part of that hearing, the district court 

notified Amaro of his right to allocution and asked if he had any statements he wanted to 

make to the court. But instead of addressing the district court about the new conviction 

and any sentence in 19CR194, Amaro addressed the court about its decision to impose 

his original sentence in 18CR21 without modification. After Amaro finished speaking, 

the district court told him that it had reconsidered his sentence in 18CR21 based on his 

statements, but it was still imposing the original sentence in that case without 

modification. Thus, Amaro essentially received the opportunity to address the district 

court about its decision to revoke his probation and impose the original sentence, and he 

cannot show any prejudice by the district court's failure to allow him to speak.

In sum, Amaro had no statutory right to allocution at his probation violation 

hearing, nor did he have a recognized due process right to personally address the district

court about modifying his sentence at that hearing. Even if he had such a right, Amaro 

has not shown that he was prejudiced by the district court's failure to allow him to speak 

before revoking his probation and ordering him to serve his original sentence. As a result, 

we conclude the district court did not err in revoking Amaro's probation and ordering him 

to serve his original sentence based on the argument he has raised in this appeal.

Affirmed.