                        NOT DESIGNATED FOR PUBLICATION

                                          No. 121,003

              IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                       STATE OF KANSAS,
                                           Appellee,

                                                v.

                                       CASEY RAY KOCH,
                                          Appellant.


                                 MEMORANDUM OPINION

       Appeal from Cloud District Court; KIM W. CUDNEY, judge. Opinion filed March 20, 2020.
Affirmed.


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


Before STANDRIDGE, P.J., LEBEN and BRUNS, JJ.


       PER CURIAM: Casey Ray Koch appeals from the district court's decision to revoke
his probation and order him to serve his underlying prison sentence. We granted Koch's
motion for summary disposition under Kansas Supreme Court Rule 7.041A (2019 Kan.
S. Ct. R. 47). After review, we find no abuse of discretion on the part of the district court
and affirm.


       Koch pled no contest to one count of possession of methamphetamine. After
determining his criminal history score was C, the district court sentenced Koch to 30
months in prison but released him on probation for a term of 18 months.




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       About five months after he was sentenced, Koch admitted to violating the
conditions of his probation by continuing to use methamphetamine and by attempting to
pass off fake urine as his own for a urinalysis test. The district court accepted Koch's
admission and, based on the recommendation of both parties, ordered him to serve a 120-
day prison sanction. The district court did not modify the conditions or duration of Koch's
probation. Just under six months later, Koch admitted to violating the conditions of his
probation again by continuing to use methamphetamine and committing the new crime of
felony possession of methamphetamine with intent to distribute, as detailed in Cloud
County case No. 18 CR 224. Koch asked for another intermediate sanction, specifically a
180-day prison sanction. But the district court denied that request. The court revoked
Koch's probation and ordered him to serve his underlying prison sentence.


       Koch argues the district court abused its discretion by denying his request for an
intermediate sanction. Specifically, Koch claims that a 180-day intermediate prison
sanction was more appropriate and that no reasonable person would take the position of
the district court to bypass such a sanction and impose the underlying sentence. The
procedure for revoking a defendant's probation is governed by K.S.A. 2018 Supp. 22-
3716. Generally, once there has been evidence of a violation of the conditions of
probation, the decision to revoke probation rests in the district court's sound discretion.
State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). An abuse of discretion
occurs when judicial action is arbitrary, fanciful, or unreasonable; is based on an error of
law; or is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
The party asserting the district court abused its discretion bears the burden of showing
such an abuse of discretion. State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).


       But in this case, the district court revoked Koch's probation and imposed his
underlying prison sentence after finding that he had committed a new crime while on
probation. Under K.S.A. 2018 Supp. 22-3716(c)(8)(A), a district court does not have to
impose an intermediate sanction if the offender commits a new felony or misdemeanor


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while the offender is on probation. Given these facts and the applicable law, we find the
district court did not abuse its discretion when it revoked Koch's probation and ordered
him to serve his underlying prison sentence.


       Affirmed.




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