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NOT DESIGNATED FOR PUBLICATION

Nos. 121,494

 121,495

 

 

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

DIEGO BRICENO,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed July 31, 2020. 

Affirmed.

Submitted by the parties for summary disposition pursuant to K.S.A. 2019 Supp. 21-6820(g) and 

(h).

Before BUSER, P.J., HILL and WARNER, JJ.

PER CURIAM: In early 2018, Diego Briceno pled guilty to one count each of 

aggravated assault, criminal threat, and criminal possession of a weapon. Based on an 

agreement between the parties, the State joined Briceno in asking for a downward 

dispositional departure to probation. The court complied with their request and sentenced 

Briceno to 43 months' incarceration but granted a dispositional departure to probation, 

subject to certain conditions. 
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Then in June 2019, Briceno admitted he violated several conditions of his 

probation. He admitted to breaking the law by possessing marijuana. After hearing this, 

the court found that Briceno had violated the conditions of probation and revoked his 

probation. The court then reduced his controlling prison sentence to 24 months and sent 

him to prison. Briceno timely appealed the revocation of his probation. 

We review probation revocation for an abuse of discretion. Swope v. Musser, 223 

Kan. 133, 136, 573 P.2d 587 (1977). It is up to the party alleging abuse of discretion to 

prove it. State v. Rojas-Marceleno, 295 Kan. 525, 531, 285 P.3d 361 (2012). To show an 

abuse of discretion, a party must show that the court's decision was: 

• arbitrary, facial, or unreasonable; 

• based on an error of law; or 

• based on an error of fact. 

State v. Moore, 302 Kan. 685, 692, 357 P.3d 275 (2015). The court's action is 

unreasonable and thus an abuse of judicial discretion when no reasonable person would 

take the same view. State v. Ransom, 288 Kan. 697, 715, 207 P.3d 208 (2009). 

The court's discretion, however, is limited by K.S.A. 2018 Supp. 22-3716(c), 

providing that the court should impose a series of intermediate, graduated sanctions 

before ordering a probation violator to serve his or her underlying sentence. But the court 

can revoke probation without intermediate sanctions if the offender commits a new 

felony or misdemeanor. K.S.A. 2018 Supp. 22-3716(c)(8)(A).

Briceno argues that revoking probation without intermediate sanctions was 

unreasonable. In other words, that no reasonable person would have acted in the same 

way as the district court. We are not persuaded that this is so. Briceno's new crime 

allowed the court to revoke his probation without intermediate sanctions. The court 

revoked Briceno's probation after he violated several conditions of probation: being in 
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the company of gang members, testing positive for cocaine, and possessing marijuana. 

After considering these violations and Briceno's criminal history, the court decided to 

revoke his probation. We do not see this revocation as unreasonable.

While the court could have imposed intermediate sanctions, it was not legally 

obliged to because of Briceno's new crime. Refusing to impose an intermediate sanction 

was not beyond the scope of reasonable action based on these violations. We, therefore, 

affirm the district court's decision to revoke Briceno's probation and impose a modified 

prison sentence.

Affirmed.