1 NOT DESIGNATED FOR PUBLICATION

No. 12 1,994

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

S TATE OF K ANSAS , Appell ee ,

v.

P AUL L OREN G REINER , Appellant.

MEMORANDUM OPINION

Appeal from Shawnee District Court; J ASON G EIER , judge. Opinion filed November 2 5 , 2020.
Affirmed.

Gerald E. Wells , of Jerry Wells Attorney

- at

- Law, of Lawrence, for appellant.

Jodi Litfin , assistant solicitor general, and Derek Schmidt , attorney general, for appellee.

Before A RNOLD

- B URGER , C .J., P OWELL and G ARDNER , JJ.

P ER C URIAM : Paul Loren Greiner appeals the district court ' s revo cation of his probation and imposition of his underlying sentence , arguing the district court abused its discretion by doing so. We disagree and affirm.

As part of a plea agreement with the S tate, Greiner pled no conte s t to one count of
unlawful use of drug paraphernalia, a class B nonperson misdemeanor. On March 1,
2019 , the district court sentenced Greiner three month s in the county jail but placed him on probation from that sentence for six months.2 On May 6, 2019, the State sought to revoke Greiner ' s probation , alleging he had (1) failed to report; (2) failed to remain drug free; (3) failed to remain law abiding; (4)
failed to notify his probation officer of law enforcement contact; and (5) failed to comply
with treatment recommendations.

At the probation revocation hearing held on June 13, 2019, Greiner stipulated to failing to report and failing to remain drug free but di sputed the other allegations. Based upon these two stipulations, the district court found Greiner in violation of the terms and conditions of his probation. The State recommended revocation of his probation and imposition of the underlying sentence while Greiner asked for reinstatement to probation.
Greiner ' s probation officer also recommended that Greiner ' s probation be revoked
because Greiner had never been free of drugs during his time on probation. The district
court revoked Greiner ' s probation and ord ered him to serve his underlying three

- month sentence because it believed jail was Greiner ' s only chance to be drug free.

On appeal, Greiner argues the district court abused its discretion when it revoked his probation and ordered him to serve his jail se ntence because he claims there is no
evidence that serving his time in jail will keep him drug free. The State contends
Greiner ' s appeal is moot because he has completed his sentence. Alternatively, it argues
the district court did not abuse its discretion by revoking Greiner ' s probation and ordering
him to serve his jail sentence.

Once a probation violation is established, the case ' s disposition lies within the
district court ' s sound discretion so long as that discretion falls within the parame ters of
K.S.A. 201 9 Supp. 22

- 3716. See State v. Skolaut , 286 Kan. 219, 227

- 28 , 182 P.3d 1231 (2008). Judicial discretion is abused if the action is (1) one where no reasonable person
would take the district court ' s view; (2) based on a n error of law ; or (3 ) based on a n error of fact. State v. Woodring , 309 Kan. 379, 380, 435 P.3d 54 (2019). Greiner has the3 burden to establish an abuse of discretion. See State v. Anderson , 291 Kan. 849, 855, 249 P.3d 425 (2011).

T he State argues this appeal is moot and sho uld be dismissed because Greiner has
served the balance of his sentence. However, a n appeal will not be dismissed as moot unless "it is clearly and convincingly shown the actual controversy has ended, the only judgment that could be entered would be ineffe ctual for any purpose, and it would not impact any of the parties ' rights." State v. Tracy , 311 Kan. 605, 608, 466 P.3d 434 (2020);
State v. Roat , 311 Kan. 581, 584 , 466 P.3d 439 (2020)

. Admittedly, the docketing
statement shows Greiner is not incarcerated , and it appears Greiner has likely served his

sentence as of the date of this opinion given it was imposed on June 13, 2019. But no notice of change of custodial status is present in the record showing Greiner has completed his sentence. Thus, w e choose to resolve this case on the merits because
Greiner ' s appeal fails anyway

.

If the original crime of conviction was a misdemeanor, as is the case here, a district court has three options at its disposal w hen an offender violates probation : (1) continue or modify probation; (2) impose an intermediate two

- or three

- day jail sanction; or (3) revoke probation and order the defendant to serve the underlying sentence or any
lesser sentence. K.S.A. 201 9 Supp. 22

- 3716(b)(3)(B). Here, the district c ourt chose option three

— revoking Greiner ' s probation and ordering him to serve his underlying

sentence.

Greiner acknowledges the district court had the authority to revoke his probation but argues the decision was unreasonable because the district court was wrong to think three months in jail would keep him drug free. However, Greiner barely lasted two months before violating his probation and admitted his failure to remain drug free. At the probation revocation hearing, the district court explained that it believed Greiner ' s only chance to remain drug free was for him to serve his jail term. Greiner ' s probation officer4 recommended that d isposition , telling the district court tha t Greiner ha d never been clean
since being placed on probation. Greiner ' s probation officer believed the only way Greiner would be drug free was by serving his jail sentence.

In light of this record, Greiner fails to persuade us that no reasonable person would agree with the district court ' s decision to revoke Greiner ' s probation and order him to
serve his three

- month jail sentence . We see no abuse of discretion.

Affirmed.