Opinion
No. 107,473.
2012-11-2
STATE of Kansas, Appellee, v. Howard G. FRANKLIN, Appellant.
Appeal from Johnson District Court; James Franklin Davis, Judge.
Submitted for summary disposition pursuant to K.S.A.2011 Supp. 21–6820(g) and (h).
Before MALONE, P.J., PIERRON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Howard G. Franklin appeals the district court's decision revoking his probation and ordering him to serve his underlying sentence. We granted Franklin's motion for summary disposition in lieu of briefs under Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 60). Concluding that there was no abuse of discretion in revoking probation and finding that we lack jurisdiction to review Franklin's sentencing complaints, we affirm in part and dismiss in part.
On May 5, 2011, Franklin pled guilty to one count of failure to register as an offender. The district court granted Franklin a downward dispositional departure from a presumptive prison sentence. As such, he was placed on 36 months' probation—to be supervised by community corrections at a residential center—and he was given an underlying sentence of 100 months in prison.
The State filed a motion to revoke Franklin's probation on November 30, 2011, alleging that he violated the terms and conditions of probation. Specifically, the State alleged that Franklin had falsely reported that he had a job when he was actually working as an unpaid volunteer or visiting his family.
At a revocation hearing held on January 10, 2012, Franklin stipulated to the violations, and the district court revoked Franklin's probation. Franklin then moved for reinstatement of his probation. His attorney argued that Franklin had not committed other crimes and that he was trying to get work through a temporary employment agency. Franklin also made a statement to the district court, in which he requested a second chance on probation. At the end of the hearing, the district court ordered Franklin to serve his underlying prison sentence.
On appeal, Franklin contends that the district court abused its discretion in revoking his probation and ordering him to serve his original sentence. Franklin argues: “Given the fact that Mr. Franklin's violations occurred, not because he was trying to deceive the residential center, but rather because he was trying to find work and help his family, the district court erred in revoking his probation and ordering him to serve his original sentence.”
Probation is not a matter of right. Rather, it is an act of grace granted as a privilege by a sentencing judge. See State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once the State has proven a violation of the conditions of probation, revocation is within the sound discretion of the district court. See State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). Moreover, judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the district court, then it cannot be said that the district court abused its discretion. State v. iGant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
Here, Franklin stipulated to violating conditions of his probation by being “out of place of assignment when he was supposed to be at the residential center on some days when he was supposed to be at work.” Furthermore, we note that Franklin was granted a significant departure sentence and had already received a jail sanction because he gave falsified check stubs to his case manager. Accordingly, after carefully reviewing the record, we find that the district court did not abuse its discretion in revoking Franklin's probation.
Additionally, Franklin challenges the district court's use of his prior convictions and juvenile adjudications in his criminal history score to enhance his sentences based on due process and Sixth Amendment concerns. But Franklin failed to file a timely direct appeal from his sentence. A review of the record reveals that Franklin was sentenced in August 2011 and did not file the present appeal until January 2012. Thus, we have no jurisdiction to address this issue as it relates to his probation revocation. See K.S.A.2011 Supp. 22–3608(c); Wilkerson v. State, 38 Kan.App.2d 732, 734, 171 P.3d 671 (2007).
Finally, even if we did have jurisdiction to consider Franklin's challenge to the use of his prior convictions and juvenile adjudications in calculating his criminal history score, we find his argument to be without merit. See State v. Hitt, 273 Kan. 224, 236, 42 P.3d 732 (2002) (involving use of prior juvenile adjudications) cert. denied U.S. 1104 (2008); State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002) (involving use of prior criminal convictions).
Affirmed in part and dismissed in part.