Opinion
Nos. 107,345 107,346 107,347 107,348.
2012-09-7
In the Matter of A.N.L.-D., Appellant.
Appeal from Lyon District Court; W. Lee Fowler, Judge. Paul E. Dean, of Sherman & Dean, of Emporia, for appellant. Meghan K. Morgan, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Lyon District Court; W. Lee Fowler, Judge.
Paul E. Dean, of Sherman & Dean, of Emporia, for appellant. Meghan K. Morgan, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., MALONE and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
In this appeal, A.N.L.-D., a juvenile offender, asks us to return him to Juvenile Justice Authority custody on probation and reverse the district court's order revoking his prior probation. Because A.N.L.-D.'s admissions clearly establish that he violated the terms and conditions of his probation by absconding from his placement and being charged as a minor consuming alcohol, we see the district court's order making him serve his sentence in the Juvenile Correctional Facility a valid exercise of discretion. Furthermore, based on a prior ruling of this court, we reject his claim for additional time credits for the time he spent in the Authority's custody.
A brief case history.
In 2011, in three separate juvenile cases, A.N.L.-D. entered no contest to burglary and drug charges. In a fourth case, he pled guilty to theft. A.N.L.-D. was sentenced as a chronic offender but placed in the custody of the Authority. In October 2011, the State moved to revoke his probation, alleging A.N.L.-D. had violated the conditions of his probation by being charged with minor in consumption, for being arrested for possession of “THC,” and absconding from his placement. At a hearing on the matter, A.N.L.-D. stipulated that he violated his court-ordered placement. After hearing this, the court revoked probation and ordered A.N.L.-D. to serve 18 months in the Juvenile Correctional Facility, along with 12 months' aftercare. The court gave A.N.L.-D. credit for the 24 days he spent in custody.
Options available to a court confronted with these questions.
When the State alleges a juvenile offender violated a condition of probation, the court may extend or modify the terms of probation or placement or enter another sentence if the court finds by a preponderance of the evidence that the juvenile offender violated probation. K.S.A.2011 Supp. 38–2368(a). Our review of the matter is based on an abuse of discretion standard. The district court's decision to revoke probation is entirely discretionary. See State v. B.J.V., No. 106,356, 2012 WL 687976, at *1 (Kan.App.2012) (unpublished opinion).
Here, A.N.L.-D. stipulated to violating his court-ordered placement. In addition, the court heard testimony from A.N.L.-D.'s father and his supervisory officer while in the custody of the Authority. A.N.L.-D.'s father testified about some options he was looking into for his son, such as a football program. Carrie Serrano, A.N.L.-D.'s supervisory officer, testified A.N.L.-D.'s father had never communicated these options to her and they were not feasible, considering A.N.L.-D. was in the custody of the Authority. Serrano stated that A.N.L.-D. had been given many chances and recommended that he be placed in a correctional facility, noting he was heavily into drugs, had threatened to commit suicide, and had no sense of reality.
To us, A.N.L.-D. argues that he had a drug and alcohol problem, but he was not given drug and alcohol treatment. A.N.L.-D. says he requested such treatment as an alternative to incarceration, but that request was denied. A.N.L.-D. argues that treatment would have been a better option than being sent to the correctional facility.
At the revocation hearing, Serrano testified that if A.N.L.-D. were sent to a correctional facility, he would be first assessed; if he met the criteria for having drug and alcohol needs, he could receive treatment while in the correctional facility. Serrano's testimony undercuts any argument A.N.L.-D. has with regard to his need for drug and alcohol treatment. The district court did not abuse its discretion in revoking probation and ordering A.N.L.-D. to serve his sentence in the Juvenile Correctional Facility.
We reject the request for additional time credits.
A.N.L.-D. next argues he should have received additional credit for the time he served in the custody of the Authority because his rights were restricted while he was in custody, custody was not a suggestion but a requirement, and “absconding” from custody was a basis for his probation violation. We are not persuaded to make such an order based on the reasoning of another panel of this court in a prior case.
In In re T.G., 35 Kan.App.2d 216, 222, 133 P.3d 1279 (2005), rev. denied 280 Kan. 983 (2006), this court rejected an argument that a juvenile offender should be given credit for time he spent in a residential treatment program that was not ordered by the court, but was ordered by the Authority. On appeal, A.N.L.-D. offers no reason why this court should depart from the rationale of T.G. or why another case is more applicable.
Like the offender in T.G., A.N.L.-D. was not sentenced to live in a foster home but was placed in the custody of the Authority. It was the Authority, not the court, that placed A.N.L.-D. in a foster home. As this court in T.G. reasoned, a juvenile may agree to certain restrictions in order to be placed in the custody of the Authority rather than at a juvenile correctional facility, but once he or she accepts those restrictions as preferable to incarceration, that individual may not then claim those restrictions rendered his or her situation equivalent to incarceration. 35 Kan.App.2d at 221. The district court did not err in refusing to credit A.N.L.-D. for the time he spent in a foster home.
Affirmed.