                           NOT DESIGNATED FOR PUBLICATION

                                               No. 120,697

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                            STATE OF KANSAS,
                                                Appellee,

                                                    v.

                                           BRANDON J. BLOCKER,
                                               Appellant.


                                    MEMORANDUM OPINION

        Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed April 10, 2020.
Affirmed.


        Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.


        Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.


Before BUSER, P.J., ATCHESON, J., and WALKER, S.J.


        PER CURIAM: Defendant Brandon Blocker appeals the decision of the Sedgwick
County District Court to revoke his probation in three consolidated cases and to order that
he serve the underlying prison sentences. Blocker contends the district court failed to
make the requisite particularized factual findings that public safety considerations
warranted revocation without an intermediate sanction. We find the district court's
explanation of its decision was sufficiently detailed to support the determination to
revoke and, therefore, affirm.


        In July 2016, Blocker entered guilty pleas in three consolidated cases:

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       • 15 CR 3086. Blocker was drunk and angry. He physically attacked his girlfriend
of the moment. Blocker pleaded guilty to aggravated battery, a severity level 7 person
felony. The district court sentenced Blocker to 29 months in prison and placed him on
probation for 24 months. The sentence was consecutive to those imposed on Blocker in
two earlier cases in which he had already been placed on probation.


       • 15 CR 3097. Blocker was drunk and threatened to kill his girlfriend (a different
woman than the victim in 15 CR 3086) by crashing the motor vehicle in which they were
riding. He then drove into a tree. Blocker pleaded guilty to a severity level 8 aggravated
battery. The district court imposed a prison term of 19 months and placed Blocker on
probation for 18 months. This sentence was also consecutive to the sentences in the
earlier cases.


       • 15 CR 3098. Blocker pleaded guilty to two driving under the influence charges
under K.S.A. 8-1567 arising from separate arrests about one year and four months apart.
In one, Blocker was impaired by drugs and alcohol and in the other alcohol alone. The
district court imposed a 12-month jail term for each conviction to be served consecutively
but granted Blocker probation after he served three days on each sentence. The district
court imposed 2,160 hours of house arrest and a $2,500 fine for each DUI conviction.


       A common theme in those convictions is the prominent causative role substance
abuse played in animating Blocker's criminal conduct. A second theme is the lenity and
concomitant opportunity for rehabilitation the district court extended to Blocker by
placing him on probation.


       In September 2017, Blocker admitted to a positive drug screen for alcohol
metabolites and waived any hearing on the resulting probation violation. He served two
48-hour periods in jail as a sanction. About seven months later, Blocker missed an


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appointment with his probation officer and admitted consuming alcohol and unprescribed
medication, thereby violating his probation.


       At the probation revocation hearing, Blocker did not dispute the violations and
asked the district court for another extension of leniency to remain on probation. The
district court denied that request and ordered Blocker to serve the underlying sentences in
the three cases without any additional intermediate sanctions. The district court relied on
K.S.A. 2018 Supp. 22-3716(c)(9)(A) dispensing with intermediate sanctions when "the
safety of members of the public will be jeopardized or . . . the welfare of the offender will
not be served." The district court must explain the public safety or offender welfare
finding "with particularity." K.S.A. 2018 Supp. 22-3716(c)(9)(A). Blocker has
appealed.[*]

       [*]When the district court revoked Blocker's probation, the statutory scheme
required the imposition of intermediate sanctions for at least two successive violations
before a defendant could be ordered to serve an underlying prison sentence unless a
specific exception, such as K.S.A. 2018 Supp. 22-3716(c)(9)(A), applied. The Kansas
Legislature has since eliminated the statutory requirement for successive intermediate
sanctions, so a district court now may revoke a defendant's probation for a second
violation. The legislative amendment does not apply in this case, and the parties have not
suggested otherwise.

       Probation is an act of judicial leniency afforded a defendant as a privilege rather
than a right. See 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).


       A defendant's stipulation to the alleged violations satisfies the first step. Here,
Blocker so stipulated, obviating the State's duty to prove the violations by a
preponderance of the evidence. See State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d
1191 (2006); State v. Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.3d 844 (2007). After a
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violation has been established, the decision to reinstate probation or to revoke and
incarcerate the probationer rests within the sound discretion of the district court. See
Skolaut, 286 Kan. at 227-28. Judicial discretion has been 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, cert. denied 135 S. Ct. 728
(2014). Blocker carries the burden of showing that the district court abused its discretion.
See State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).


       A district court's authority to revoke a defendant's probation coupled with an order
to serve the underlying sentence must be exercised within the statutory framework
principally outlined in K.S.A. 2018 Supp. 22-3716. As we have explained, a district court
abuses its discretion by stepping outside that framework.


       A district court relying on the public safety exception in K.S.A. 2018 Supp. 22-
3716(c)(9)(A) to bypass intermediate sanctions must provide case-specific reasons for
doing so, tying the defendant's particular circumstances to valid safety considerations.
State v. Clapp, 308 Kan. 976, 989, 425 P.3d 605 (2018); State v. Miller, 32 Kan. App. 2d
1099, 1102, 95 P.3d 127 (2004). Generic or briefly stated reasons lacking detail about the
defendant and his or her imposition on public safety fail of that statutory purpose and,
therefore, cannot stand as a proper basis to skip otherwise required intermediate
sanctions. A district court could not simply say, for example, the defendant failed on
probation and would again if continued on probation, posing a safety risk. That would be
no more than a rote explanation that could be generically applied to almost any defendant
who had messed up on probation. Blocker pins his case on appeal on that sort of mistake.


       We have reviewed the district court's explanation for revoking Blocker's probation
under K.S.A. 2018 Supp. 22-3716(c)(9)(A). The district court pointed out that Blocker
had nine earlier convictions—mostly for driving under the influence and a few for drug
possession. The common theme in the current cases, therefore, has deep roots in
Blocker's criminal history. That's a specific determination. Likewise, Blocker
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acknowledged his unsuccessful participation in about half a dozen substance abuse
treatment programs. The district court cited those difficulties. That's another specific
determination. And the district court noted that Blocker's history demonstrated an
inability to remain sober.


       The circumstances of Blocker's current crimes of conviction show him to be a
danger to others when he abuses drugs and alcohol. Not to put too fine a point on it,
Blocker displays violent tendencies, as he did in 15 CR 3086 and 15 CR 3097, when he
consumes alcohol. Moreover, drunk drivers continue to pose a grave public safety risk to
other motorists. See Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 2178, 195
L. Ed. 2d 560 (2016) (Although alcohol related traffic injuries and deaths have declined
in recent years, "the statistics are still staggering."). So chronic drunk drivers—those who
can't or won't reform—pose a real danger to themselves and others. The district court
concluded that Blocker probably would "go out and drink" and hurt himself or others,
"[p]ossibly very severely or fatally." That is yet a third specific determination grounded
in Blocker's history of substance abuse and his current crimes of conviction. The district
court could have been more expansive in describing the circumstances of Blocker's
present crimes—that part of the ruling swayed toward the terse. But the underlying facts
were known to all of the participants, and the connection between those facts and the
district court's detailed reasoning was unmistakable.


       The district court rendered its findings for bypassing any additional intermediate
sanctions based on the public safety exception in K.S.A. 2018 Supp. 22-3716(c)(9)(A)
with sufficient particularity. The conclusion and the underlying reasoning fit within the
statutory framework. The district court, therefore, did not abuse its discretion.


       Affirmed.




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