State v. Rogers, 123290

Rogers pled no contest to attempted theft (severity level 10); with a C criminal history he received a presumptive 9‑month prison sentence but was granted 12 months of probation.
The State alleged Rogers committed new crimes while on probation (burglary/theft, including stealing a pickup and items) and filed a revocation petition.
At the probation‑violation hearing, the State presented evidence of the theft; the district court found Rogers committed new crimes, revoked probation, and imposed the original prison sentence.
Rogers appealed, arguing the court erred in revoking probation and imposing the underlying sentence and claiming a constitutional sentencing error (criminal history score not submitted to a jury).
The court applied the preponderance standard for probation violations, reviewed factual findings for substantial competent evidence, noted K.S.A. 2018 Supp. 22‑3716 generally requires intermediate sanctions but contains an exception for new crimes committed on probation, and observed Rogers did not properly challenge the evidentiary finding.
The court affirmed the revocation and sentence imposition and dismissed the constitutional sentencing claim as untimely (and noted controlling precedent rejecting Rogers’ constitutional theory).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court erred in finding Rogers committed new crimes while on probation	Rogers claimed the court abused its discretion in finding a new offense	State presented evidence of theft; court found violation by preponderance	Rogers abandoned challenge to sufficiency of evidence; finding upheld
Whether the court abused discretion by revoking probation instead of reinstating it	Rogers argued revocation was an abuse of discretion	Court had statutory authority to revoke when offender commits new crimes on probation	No abuse of discretion; revocation affirmed
Whether statutory intermediate sanctions had to be imposed before revocation	Rogers implied court should have used graduated sanctions first	K.S.A. 2018 Supp. 22‑3716 requires sanctions but excepts cases where offender commits a new crime	Exception applies for new crimes; sanctions not required before revocation
Whether Rogers’ constitutional sentencing claim (criminal history score/jury) is reviewable on this appeal	Rogers argued sentence violated his constitutional rights because history score wasn’t jury‑found	State notes Rogers did not timely appeal his original sentence; sentence not correctable at any time under the cited statute	Dismissed for lack of jurisdiction (untimely appeal); precedent also rejects the constitutional claim

State v. Lloyd, 52 Kan. App. 2d 780, 375 P.3d 1013 (probation‑violation proof by preponderance)
State v. Inkelaar, 38 Kan. App. 2d 312, 164 P.3d 844 (review standard for factual findings on probation revocation)
State v. Coleman, 311 Kan. 332, 460 P.3d 828 (revocation decision is within district court discretion)
State v. Skolaut, 286 Kan. 219, 182 P.3d 1231 (discretionary nature of probation revocation)
State v. Ballou, 310 Kan. 591, 448 P.3d 479 (abuse of discretion standards)
State v. Thomas, 307 Kan. 733, 415 P.3d 430 (defendant bears burden to show abuse of discretion)
State v. Huckey, 51 Kan. App. 2d 451, 348 P.3d 997 (K.S.A. 22‑3716 requires graduated sanctions)
State v. Arnett, 307 Kan. 648, 413 P.3d 787 (issues not briefed are abandoned)
State v. Warrior, 303 Kan. 1008, 368 P.3d 1111 (constitutional sentence claim not necessarily correctable at any time)
State v. Ivory, 273 Kan. 44, 41 P.3d 781 (rejects the specific constitutional argument about criminal history scoring)