Opinion
No. 106,998.
2012-08-31
STATE of Kansas, Appellee, v. Sonya R. BATTLE, Appellant.
The district court revoked Battle's probation but reduced her sentence in each case to give her a controlling prison term of 33 months.
Appeal from Sedgwick District Court; Terry L. Pullman, Judge.
Submitted for summary disposition pursuant to K.S.A.2011 Supp. 21–6820(g) and (h).
Before GREENE, C.J., PIERRON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Sonya R. Battle appeals the district court's decision revoking her probation in three separate cases the district court consolidated for appeal. Battle also attempts to challenge her underlying sentence. We granted Battle's motion for summary disposition in lieu of briefs pursuant to K.S.A.2011 Supp. 21–6820(g) and (h) and Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 60). The State filed a response asking this court to affirm the district court's decision. We conclude there was no abuse of discretion and affirm the district court's revocation of Battle's probation. We further find Battle's attempted challenge to her underlying sentence is untimely and that issue must be dismissed.
In Battle's first case—08CR3598—she entered a plea and was found guilty of one count of theft. In June 2009, the district court imposed presumptive probation with an underlying sentence of 9 months' incarceration. In the second case—09CR3726—Battle pleaded guilty to theft after a second conviction. The conviction resulted in presumptive probation with an underlying sentence of 10 months' incarceration to run consecutive to the sentence imposed in 08CR3598. In the third case—11CR117—Battle entered a plea to possession of a controlled substance and two misdemeanor counts. In June 2011, the district court imposed presumptive probation for the felony conviction with an underlying prison term of 20 months' to run consecutive to the sentence imposed in 09CR3726.
Battle did not do particularly well on probation. In addition to violating the terms and conditions of her probation by the commission of each subsequent offense, Battle violated probation by testing positive for cannabinoids and admitting consumption of alcohol and crack cocaine. Each time Battle violated probation the district court reinstated her probation, until the final probation revocation hearing held in October 2011. At that hearing, Battle waived her right to an evidentiary hearing and stipulated she violated the terms and conditions of probation by testing positive for cocaine. After hearing statements and arguments from the parties, the district court concluded Battle was “unwilling to abide by the terms and conditions of probation in a way to meaningfully address [her] addiction.” The district court concluded by noting:
“Ms. Battle, I can't look into your heart. I can't know if what you're saying is what you truly believe, is truly the fact, [or] is what you want to believe. What I can do is look at the track record. And the track record's not great.
....
“... What I know is that you continue to have these issues and that we have limited resources in the community. And I think it's gotten to the point where I'm ready to use those limited resources on somebody else.”
The district court revoked Battle's probation but reduced her sentence in each case to give her a controlling prison term of 33 months.
On appeal, Battle contends the district court abused its discretion in revoking her probation. Citing Swope v. Musser, 223 Kan. 133, 136–37, 573 P.2d 587 (1977), for the proposition that while revocation of probation is within the district court's discretion, revocation presupposes a violation of the conditions of probation that is not outweighed by mitigating factors, Battle then lists several things in her life that she contends serve to mitigate her use of controlled substances.
Probation from service of a sentence, however, is an act of grace by the sentencing judge and, unless otherwise required by law, is granted as a privilege, not as a matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Additionally, another panel of our court has clarified that “ Swope merely stands for the proposition that a district court cannot arbitrarily revoke a defendant's probation unless that defendant has violated the terms of that probation.” State v. Ottinger, 46 Kan.App.2d 647, 654, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (2012). In this case, the record clearly shows the district court did not act arbitrarily in revoking Battle's probation and ordering her to serve a modified sentence. See State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001) (after the State proves a violation of the terms and conditions of probation, revocation is within the sound discretion of the district court); State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009) (judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable).
Next, Battle attempts to challenge her underlying sentence by arguing the use of her prior criminal history, without putting it to a jury and proving it beyond a reasonable doubt, violated her constitutional rights. But Battle's sentencing challenge is untimely. See K.S.A.2010 Supp. 22–3608(c) (required a notice of appeal to be filed within 14 days after sentencing). Thus, we lack jurisdiction over the sentencing issue. Even if we had jurisdiction, the Kansas Supreme Court has soundly decided this issue against Battle's position. See, e.g., State v. Farmer, 285 Kan. 541, 554–55, 175 P.3d 221 (2008); State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002).
Affirmed in part and dismissed in part.