1 NOT DESIGNATED FOR PUBLICATION

No

. 123,832

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

S TATE OF K ANSAS , Appellee ,

v.

J ESSIE A. A COSTA , Appellant

.

MEMORANDUM OPINION

Appeal from Wyandotte District Court; J ENNIFER L. M YERS , judge. Opinion filed January 7 , 202 2

. Affirmed.

Joseph A. Desch , of Law Office of Joseph A. Desch, of Topeka , for appellant.

Daniel G. Obermeier , assistant district attorney, Mark A. Dupree Sr. , district attorney, and Derek
Schmidt , attorney general , for appellee.

B efore B RUNS , P.J., G REEN and I SHERWOOD , JJ.

P ER C URIAM : Jesse A. Acosta pleaded guilty to two counts of contributing to a child's misconduct. He was granted a dispositional departure and ordered to complete 24 months of probation. Acosta's probation was revoked at his second revocation hearing , and he was ordered to serve his underly ing prison sentence. At the time, Acosta had only completed a two

- day quick dip in county jail. On appeal, Acosta argues the district court abused its discretion when it imposed his original sentence without first ordering him to complete another graduated sanction. Acosta relies on language used by the district court before it imposed the original sentence, when it said, " [W] e have tried everything , " as2 support for his contention that the district court committed an error of fact because it had not, in fact, tried everything as sanctions remained available under K.S.A. 2015 Supp. 22

- 3716

. As a result, he claims the district court erred when it imposed his original sentence
based on the factual mistake that it was out of option s . After reviewing the issue presented, we find that the district court did not commit a factual error as its comment

r efer enced the fact it had placed Acosta with every available community corrections

program and therefore had no further options in that regard. Thus, t he district court did
not abuse its discretion and its decision to impose Acosta's underlying sentence is
affirmed.

F ACT UAL AND P ROCEDURAL B ACKGROUND

The State charged Jesse A. Acosta with one count of aggravated battery , a crime that occurred July 6, 2015 . Acosta later pleaded guilty to two amended charges of contributing to a child's misconduct and, p rior to sentencing , filed a motion in support of a dispositional departure. In March 2017, t he district court g ranted Acosta's request and ordered him to complete 24 months of probation with an underlying prison term of 41
months

.

Eight months later, t he State moved to revoke Acosta's pr obation and a lleged that
he failed to report as directed , failed to submit to random drug tests, and failed to pay court costs. The motion also noted that Acosta's whereabouts were unknown, and a bench

warrant was issued for his arrest. Approximately one y ear later, t he State filed an
addendum to its motion and noted that shortly after its original revocation motion was filed, Acosta acquired new convictions for fleeing and eluding, aggravated battery, possession of stolen property, and forgery in Wabaunsee and Riley Counties.

The district court held a probation revocation hearing and Acosta stipulated to the
violations . The court extended his probation for 1 2 months and ordered him to complete3 inpatient treatment. Around a year later, for reasons that are unclear from either the
record or the briefs of the parties, Acosta waived his right to y et a nother revocation hearing and his probation was extended by another 12 months.

A mere two months later, Acosta was again b efore the court to answer for allegations that he violat ed his probation through multiple failed and missed UAs, a s well

as his failure to report as directed on two separate occasions

. Acosta stipulated to the violations and agreed to complete a two

- day quick

- dip jail sanction

.

Within nine months, t he State filed yet an other motion to revoke Acosta's probation. It alleged that Acosta again failed to report for scheduled office visits, failed to
submit to UAs, failed two UAs, failed to successfully participate in substance abuse treatment, failed to make consistent payments towards his court cost s, and neglected to provide proof of employment as required under the terms and conditions of his probation

. The State also outlined four unsuccessful attempts to contact A costa.

In February 2021, t he district court held a hearing on the motion and Acosta stipulated to each violation alleged . The State recommended revocation of Acosta's probation because he received a dispositional departure at the initial sentencing, had at least one previous revocation hearing, voluntarily extended his probation in another
instance , and yet continued to violate the terms of his probation. Acosta informed the

court t hat he was an addict and requested another chance to attempt to complete an inpatient substance abuse treatment program rather than serve his prison term.

T he district court expressed sympathy over Acosta's drug addiction and noted that he was granted the grace of probation , yet his previous attempts at tr eatment and other community corrections programs were unsuccessful because he failed to participate. The
court determined that it had afforded Acosta an opportunity with every available program4 and voiced concern that his drug addiction endangered the publ ic . Thus , the court revoked Acosta's probation and ordered him to serve his original sentence.

Ac osta timely appeals.

A NALYSIS

D ID T HE D ISTRICT C OURT A BUSE I TS D ISCRETION I N R EVOKING A COSTA ' S P ROBATION ?

On appeal, Acosta argues the district court abused its discretion when it revoked his probation and imposed his underlying sentence because the foundation for its decision was factually flawed.

A district court's decision in a probation revocation hearing first involves a factual
determination of whether the probationer has violated a condition of the probation , which
is then followed by a discretionary determination of whether the established vi olation warrants revoking probation. State v. Skolaut , 286 Kan. 219, 227, 182 P.3d 1231 (2008)

. Acosta admitted violating his probation an d , on appeal, only challenges the court's
decision to impose his underlying prison sentence as a result of these viol ations. Appellate courts review a district court 's decision to revok e probation under an abuse of
discretion standard. State v. Hurley , 303 Kan. 575, 580, 363 P.3d 1095 (2016)

. " An abuse
of discretion occurs if: (1) no reasonable person would take the view adopted by the district court; (2) the decision is based on an error of law; or (3) the decision is based on
an error of fact. " State v. Ballou , 310 Kan. 591, 615, 448 P.3d 479 (2019) . An error of
fact exists when a fact ual finding is not supported by substantial competent evidence.
State v. Ward , 292 Kan. 541, 570, 256 P.3d 801 (2011) . Substantial competent evidence is relevant and legal evidence that a reasonable person would " ' accept as being sufficient to support a conclusion. ' " State v. Doelz , 309 Kan. 133, 138, 432 P.3d 669 (2019)

. As the5 party alleging an abuse of discretion, Acosta bears the burden of proof on appeal. See
Ballou , 310 Kan. at 615

.

Acosta contends the district court abused its discretion when it imposed his underlying prison sen tence following revocation of his probation . He specifically argues
that an error of fact occurred when the court remarked that " we have tried everything "
because until then Acosta had only served a two

- day quick dip sanction . Thus, other
sanction options remained available to the court.

Acosta and the State agree , albeit for different reasons, that additional sanctions

were available before imposition of his sentence. For his part, Acosta asserts that a 60

- day sanction under K.S.A. 2019 Supp. 22

- 2716(c)(9 ) and another 2

- or 3

- day sanction under K.S.A. 2019 Supp. 22

- 2716(c)(1)(B) were potential dispositions

. As the State notes, Acosta's argument seems to be that the district court could have simply given him

a lesser sanction

.

The foundation f or Acosta's argument is the district court's remark at the revocation hearing that " we have tried everything. " He interprets this to mean , and attempts to persuade us of the same, that the court erroneously believed it had no other option and so the imposition of his underlying sentence stemmed from the court's factual

error.

To support his argument, Acosta directs this panel to State v. Ardry , 295 Kan. 733, 286 P.3d 207 (2012). Ardry pleaded guilty to aggravated indecent liberties with a child

. He was granted a downward dispositional departure and ordered to serve probation. He
later violated his probation and, at the revocation hearing, asked the district court to reinstate his probation and order him to attend a residential treatment program or, alternatively, order him to serve a modified prison term of 102 months , rather than his original sentence of 216 months. After learning that a treatment program would not6 accept Ardry, the district court imposed his original sentence. A panel of this c ourt affirmed. 295 Kan. at 735.

The Kansas Supreme Court granted review and noted " Ardry argues that the district court abused its discretion at the probation revocation hearing by imposing the original sentence because the court misunderstood the law an d so did not properly consider the statutory limitations or legal standards for imposing a lesser sentence. " 295
Kan. at 735. It noted that " the district court misstated the statutory requirements for imposing a lesser sentence in a revocation proceeding. " 295 Kan. at 735. During sentencing, the district court had erroneously determined t hat before it could order a
reduced sentence , K.S.A. 22

- 3716 required that it f ind substantial and compelling reasons
to do so. Additionally, the reasons it relied on must be distinctly different than those factors cited in support of its earlier dispositional departure. Our Supreme Court found
that the district court's mis interpretation of the statute constituted an error of law that demanded Ardry's case be reversed and remanded for resentencing. 295 Kan. at 736

- 37

.

Acosta relies on Ardry because the district court there likewise felt as though it had no option but to impose Ardry's original sentence. But that reliance is misplaced . In Ardry , the district c ourt made an error of law through its flawed interpretation of the sentencing statute which led to the erroneous incorporation of an additional test into the probation revocation statute. Acosta argues the district court had a factual misunderstanding abou t its available options.

He contends his claim " also falls under an interpretation of [statute], for which
review is unlimited , " but cites no authority for the proposition that a mistake of fact regarding sentencing options is reviewed de novo. Though on the surface the reasoning of Ardry appears somewhat analogous, the questions raised are different and require distinct analyses. We are not persuaded that Ardry is applicable or favorable to Acosta's case.7 T he State counters that when the district c ourt's statement is reunited with its

context , the phrase was simply the court's observation that Acosta had received all options available to him in terms of programs offered through community corrections.
Th us, in truth, it was not commenting o n the general availability of additional sanctions
under K.S.A. 22

- 3716 (c)

.

Reviewing courts generally presume that district court judges know the law. See
Chance v. State , 195 Kan. 711, 715, 408 P.2d 677 (1965) ( " Since district judges, like
other citize ns, are presumed to know the law, it is presumed that such a jurisdictional finding was in fact made by the District Court of Labette County. " ). Reviewing courts
also read district court statements in context. State v. Robinson , 293 Kan. 1002, 1033, 270
P. 3d 1183 (2012) (reading a district court judge's comment in context)

.

We have no difficulty concluding that , taken i n context , the challenged phrase referenced community corrections programs

. Again, the court's s tatement as a whole

r eads as follows :

"THE COURT: All right. Thank you. You can have a seat. All right. Well, Mr. Acosta, I have no doubt that you suffer from a serious drug addiction problem. I

— there's no doubt. I feel sorry for you for having that addiction, but the problem is is you've been given numerous opportunities to get help and you either walk away or you just choose not to participate. And it puts me in a situation where you're just a danger to the community when you

— when people have drug problems, they become a dan ger not because you're a bad person or because you want to be a danger, but because when you're high, you do things that maybe you normally wouldn ' t do in your right mind.

" So because we have tried everything

— the only thing that would save you in this

ca se would be Drug Court and it looks like that was already looked at and that's not an option as it was

— you were not accepted by the program. You were a dispositional departure, which means based on your criminal history and based on the charges, you

were s upposed to go to prison the very first time. Judge Burdette went out on a limb and8 gave you a chance. I've given you a few chances now and I think that at this point, it's unlikely that you will get the help you need. "So, for these reasons, your probati on is revoked and you're ordered to serve the original sentence." (Emphasis added.)

Two specific lines used by the district court support our conclusion for a contextual reading. First, the court state d , " [B] ut the problem is is you've been given numerous opportunities to get help and you either walk away or you just choose not to participate. " This comment arguably referenced Acosta's multiple probation violations for failing to report to his probation officer as directed and hi s unsuccessful discharge f rom substance abuse treatment. Additionally, at the time t he State's motions to revoke
Acosta's probation were filed, his whereabouts were unknown and there was a concern
that he absconded. T h us, on more than one occasion he activ ely pursued a course of refusing to avail himself of the rehabilitative measures offered through probation.

T he court also stated , " So because we have tried everything

— the only thing that would save you in this case would be Drug Court and it looks like that was already looked at and that's not an option as it was

— you were not accepted by the program. " Th e judge uttered this comment shortly after r eferencing the opportunities given to Acosta. Thus, the complained

- of remark is perhaps related to further community corrections efforts. Though the district court repeatedly commented on Acosta's failures to comply with community corrections mandates, it did not reference the two

- day quick dip or any other part of K.S.A. 22

- 3716

.

The State correctly notes that viewing the probation revocation hearing transcript
with a wider lens lends credibility to its argument. After Acosta stipulated to the alleged probation violations, the district court opened the floor for arguments on the appropriate disposition. The State requested imposition of Acosta's original prison sentence and
Acosta pleaded for another shot at inpatient treatment after expressing regret over his failed attemp t s at probation. The district court ac knowledged that Acosta likely s uffered9 from a ddiction b ut noted that he had " been given numerous opportunities to get help and you either walk away or you just choose not to participate. " The paragraph that follows contains the phrase Acosta argues is an error of fact. W hen read in the broader context of the exchange between the court, the State, and Acosta, however, the district court's

comment follows Acosta's request to be placed back on probation and in to treatme nt. The
district court note d that Acosta had failed previously, and the only other community corrections option , drug court, was unavailable.

A fair reading of the record enables us to conclude that when the court's assertion
that " we have tried everythi ng " is properly contextualized , it is related to Acosta's community corrections and treatment history. Thus, the district court did not commit a
factual error because its finding substantial competent evidence provides the necessary
foundation

. That is, t h ere is relevant and legal evidence which a reasonable person would accept as sufficient to establish that Acosta had multiple opportunities on community
corrections but failed to dedicate himself to its successful completion. As a result, the
district cour t did not abuse its discre tion and its decision is affirmed.

Affirm ed

.