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NOT DESIGNATED FOR PUBLICATION

No. 122,618

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

ZACKARY J. CARY,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; SETH L. RUNDLE, judge. Opinion filed February 19, 2021. 

Affirmed.

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

(h).

Before ARNOLD-BURGER, C.J., GREEN and MALONE, JJ.

PER CURIAM: Zackary J. Cary appeals the Sedgwick County District Court's 

judgment to revoke his probation and impose the underlying sentence. Cary moved for 

summary disposition under Supreme Court Rule 7.041A (2020 Kan. S. Ct. R. 47). The 

State responded and asked that we affirm the trial court's judgment. We granted Cary's 

motion for summary disposition, and based on our review of the record, we find no abuse 

of discretion by the trial court and affirm.

On August 17, 2017, Cary pled guilty to two offenses committed on June 28, 

2017: aggravated battery, a severity level 8 person felony, and criminal possession of a 

firearm by a convicted felon, a severity level 8 nonperson felony. At the sentencing 
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hearing on October 12, 2017, the trial court imposed a controlling 22-month prison 

sentence but granted Cary's motion for a dispositional departure to 18 months' probation. 

The court determined that an existing treatment program was likely to be more effective 

than prison in reducing the risk of recidivism.

Within three months of being granted probation, Cary consented to serve a 48-

hour jail sanction after admitting to violating his probation by committing theft. One 

month later, the State issued a bench warrant alleging Cary violated multiple conditions 

of his probation including failing to report, failing to obey the law, and testing positive 

for alcohol consumption. On January 10, 2018, after Cary admitted to multiple violations, 

the trial court ordered Cary to serve a 120-day prison sanction in Kansas Department of 

Corrections.

About a year later, the State issued another bench warrant alleging that Cary again 

violated multiple conditions of his probation in November and December 2018. At the 

probation violation hearing, Cary admitted to the allegations of failing to report to his 

supervision officer, failing to participate in education or personal growth programs as 

directed, and failing to obtain and maintain employment. Thus, the trial court determined 

that Cary had violated his probation and ordered Cary to complete a community 

corrections residential program and to remain in custody until he was accepted into that 

program. The trial court also modified Cary's probation by extending it 24 months from 

when he was released to begin the community corrections program.

Less than two months later, on March 19, 2019, the State issued a bench warrant 

alleging that Cary had violated his probation by testing positive for cocaine and by failing 

to return after checking out from his residential center on a temporary pass. The trial 

court held the probation violation hearing on February 11, 2020, while it also sentenced 

Cary for aggravated escape from custody in another case. Based on the probation 
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violations, the trial court revoked Cary's probation and, finding that Cary committed a 

new felony while on probation, imposed his underlying sentence of 22 months in prison.

Cary timely appeals.

In his motion for summary disposition, Cary contends that the trial court erred in 

revoking his probation and ordering him to serve his underlying prison sentence. Cary 

acknowledges, however, that the trial court had discretion to revoke his probation 

because he committed a new crime. See K.S.A. 2019 Supp. 22-3716(c)(7)(C) (court may 

revoke probation without intermediate sanctions if defendant commits new felony while 

on probation); State v. Clapp, 308 Kan. 976, 978, 425 P.3d 605 (2018) (holding this 

graduated sanction applies to probation violations that occurred on or after July 1, 2013). 

Once the State has established a probation violation and an exception to the 

intermediate sanctions requirement, the trial court has discretion to determine whether to 

continue probation or to revoke and require the defendant to serve the underlying prison 

sentence. See State v. Brown, 51 Kan. App. 2d 876, 879-80, 357 P.3d 296 (2015). When 

the issue is whether the trial court imposed the appropriate sanction for the violation, we 

review the probation revocation decision for abuse of discretion. State v. Hurley, 303 

Kan. 575, 580, 363 P.3d 1095 (2016). Thus, Cary bears the burden to show that the trial 

court abused its discretion. See State v. Rojas-Marceleno, 295 Kan. 525, 531, 285 P.3d 

361 (2012). The trial court abuses its discretion if its decision is based on legal or factual 

error or if no reasonable person would agree with the decision. State v. Ballou, 310 Kan. 

591, 615, 448 P.3d 479 (2019). 

In January 2020, a jury concluded that Cary committed aggravated escape from 

custody while he was residing at his assigned residential center, which Cary does not 

dispute. By that time, the trial court had given Cary three chances to complete probation 

after he admitted to violating its conditions. We, thus, find the trial court's decision to 
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revoke Cary's probation was not beyond the scope of reasonable action. Because Cary 

fails to meet his burden to show that no reasonable person would have taken the view 

adopted by the trial court, we affirm.

Affirmed.