1 NOT DESIGNATED FOR P UBLICATION

No . 121,973

IN THE COURT OF APPE ALS OF THE STATE OF KANSAS

S TATE OF K ANSAS , Appellee ,

v.

E RIC B. B REWER , Appell ant

.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; C HRISTOPHER M. M AGANA , judge. Opinion filed Ju ly 2 , 2020

. Affirmed

.

Submitted for summary disposition pursuant to K.S.A. 201 9 Supp. 21

- 6820 (g) and (h).

B efore W ARNER , P .J., M ALONE , and B R U NS , J J

.

P ER C URIAM : Eric B. Brewer appeals the district court's denial of his request to modify his sentence after revoking his probation. Brewer complains that the district court abused its discretion in declining to run his underlying sentence concurrently with three prior municipal court sentences. We granted Brewer's motion for summary disposition pursuant to Supreme Court Rule 7.041A (20 20 Kan. S. Ct. R. 47). The State responded by not objecting to summary disposition, but it asks that the district court's judgment be
aff irmed. Finding no abuse of discretion, we affirm the district court's judgment.

In 2018, Brewer pled guilty to one count of felony domestic battery and one count of misdemeanor battery in case 18C R1962. The convictions arose out of an incident
between Bre wer and his girlfriend, S

. L. The district court imposed a controlling sentence2 of 18 months in jail but granted probation for 12 months. The district court also ordered
that the s entence run consecutively to Brewer's sentences in three prior municipal cour t

c ases , all involving domestic battery convictions.

While on probation, Brewer pled guilty to criminal damage to proper ty in case
19CR1213. This new case also arose from a domesti c violence incident involving S

. L

. As
a result , the district court revoked Brewer's probation in case 18CR1962 because he
committed a new crime and was a threat to public safety. Brewer asked the district court

to modify his sentence in 18CR1962 and run the 18

- month jail term concurrently with the three prior municipal c ourt sentences . Th e district court denied this request noting Brewer's extensive criminal history involving multiple batteries and his failure to take advantage of probation opportunities.

On appeal, Brew er claims the district court "erred by denying [his] request for a sentence modification to have his three municipal court cases run concurrently with this
case." Brewer acknowledges that it is within the district court's discretion to run the
sentences in the separate cases concurrently or consecutively. The State responds that Brewer "has failed to present any compelling argument as to why the district court abused its discretion in running the sentences consecutively."

K.S.A. 2019 Supp. 22

- 3716(c)(1)(C ) provides that upon revoking an offender's probation, the district court may require the offender to serve the original sentence "or any lesser sentence." The district court's decision to modify a sentence upon revoking probation rests within the court's d iscretion. State v. Reeves , 54 Kan. App. 2d 644, 648, 403 P.3d 655 (2017). Judicial discretion is abused if the action (1) is arbitrary, fanciful, or
unreasonable , i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is b ased on an error of law; or (3) is based on an error of fact. State v. Jones , 306 Kan. 948, 957, 398 P.3d 856 (2017) . Brewer bears the burden to show an abuse of
discretion

. See State v. Rojas

- Marceleno , 295 Kan. 525, 531, 285 P.3d 361 (2012)

.3 Brewer fails to provide any facts to show how the district court abused i ts discretion in failing to modify the sentence. The record reflects that Brewer has been convicted of crimes in five separate cases arising from domestic violence. The district

court noted that Brewer needed to serve each sentence separately because of his failure to
take advantage of probation opportunities . Brewer fails to convince us that no reasonable

person w o uld have taken the district court's position. We conclude the district court did

no t abuse its discretion in denying Brewer's request for a sentence modification.

Affirmed.