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NOT DESIGNATED FOR PUBLICATION

No. 122,407

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

DRAKE ELLSWORTH KRAUSE,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed October 30, 2020. 

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., BUSER and WARNER, JJ.

PER CURIAM: Drake Ellsworth Krause appeals the district court's imposition of an 

intermediate three-day jail sanction after the court found he violated his probation. We 

granted Krause's motion for summary disposition pursuant to Supreme Court Rule 

7.041A (2020 Kan. S. Ct. R. 47). The State responded, seeking dismissal of the appeal as 

moot. Upon our review of the record on appeal, we affirm the district court.

In November 2017, in keeping with a plea agreement with the State, Krause pled 

guilty to felony fleeing or attempting to elude an officer and misdemeanor driving under 

the influence (DUI). In return, the State dismissed other charges. In January 2018, Krause 
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was sentenced to six months in prison for fleeing or attempting to elude an officer and six 

months in jail for DUI. The sentences were ordered to run consecutively, but the district 

court granted Krause a 12-month probation. Krause was also fined $750.

In March 2018, Krause violated his probation for the first time by possessing or 

using alcohol and/or unprescribed medications and testing positive for alcohol 

consumption. Krause waived his right to a probation revocation hearing, admitted to the 

violations, and agreed to serve an intermediate three-day jail sanction while remaining on 

probation.

In August 2019, Krause admitted to violating his probation again by testing 

positive for unprescribed medication (Benzodiazepine), possessing or using alcohol 

and/or unprescribed medication, failing to report to his intensive supervision officer, and 

failing to pay lab fees. As a consequence, the district court ordered Krause to serve an 

intermediate 2-day jail sanction and extended his probation for 12 months.

Relevant to this appeal, shortly thereafter in October 2019, the State alleged that, 

once again, Krause violated his probation by submitting two urinalysis specimens in 

August and September 2019 that tested positive for alcohol consumption. The district 

court held a probation revocation hearing in November 2019. After considering the 

evidence, the district court found that Krause had violated his probation for the third time. 

As a result, the district court imposed a three-day jail sanction but did not extend Krause's 

probation.

On appeal, Krause contends without argument that the district court abused its 

discretion by imposing the latest three-day jail sanction. The State, noting that the jail 

sanction was imposed almost a year ago, asserts that Krause's appeal is moot. For his 

part, Krause acknowledges that he has already served this sanction. Because this appeal is 
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readily decided by considering the merits of the matter, we will decline the State's 

suggestion and consider Krause' appeal.

Probation is an act of judicial leniency afforded a defendant as a privilege rather 

than a right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). A district court's 

decision to revoke probation usually involves two steps: (1) a factual determination that 

the probationer has violated a condition of probation; and (2) a discretionary 

determination as to the appropriate disposition in light of the proved violations. State v. 

Skolaut, 286 Kan. 219, Syl. ¶ 4, 182 P.3d 1231 (2008).

In the present appeal, the district court found by a preponderance of evidence that 

Krause had violated his probation. Krause does not take issue with that judicial finding. 

Once a probation violation has been established, the decision to reinstate or revoke the 

probation is a matter for the sound discretion of the district court. See Skolaut, 286 Kan. 

at 227. Judicial discretion is abused if a decision is arbitrary, fanciful, or unreasonable or 

rests on a substantive error of law or a material mistake of fact. State v. Cameron, 300 

Kan. 384, 391, 329 P.3d 1158 (2014). Kraus has the burden of showing that the district 

court abused its discretion. See State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).

The district court's discretion to revoke a defendant's probation in this case was 

limited by the graduated sanctioning scheme outlined in K.S.A. 2019 Supp. 22-3716. By 

law, the district court was required to impose at least one two- or three-day sanction of 

confinement in a county jail before revoking a defendant's probation. See K.S.A. 2019

Supp. 22-3716(c)(1)(B) and (C). In the present case, the district court's imposition of a 

three-day jail sanction in lieu of ordering imprisonment was wholly consistent with the 

letter and spirit of the statutory scheme.

A district court abuses its discretion when it bases its decision on a legal or factual 

error or when it enters an order upon which no reasonable person could agree. State v.
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Jones, 306 Kan. 948, 957, 398 P.3d 856 (2017). Krause does not favor us with any claim 

of a legal or factual error. Moreover, he fails to show why no reasonable person could 

agree with the district court's imposition of a brief jail sanction for his third probation 

violation. Quite simply, upon our review of the record on appeal we find no abuse of 

discretion by the district court.

Affirmed.