Opinion
No. 108,385.
2013-08-29
STATE of Kansas, Appellee, v. Mark D. LYNCH, Appellant.
Appeal from Sedgwick District Court; J. Patrick Walters, Judge.
Submitted for summary disposition pursuant to K.S.A.2012 Supp. 21–6820(g) and (h).
Before MALONE, C.J., PIERRON and GREEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Mark D. Lynch appeals the district court's decision revoking his probation and ordering him to serve his underlying sentences in two separate cases. We granted Lynch's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2012 Kan. Ct. R. Annot. 62). The State has filed no response.
On May 17, 2010, Lynch pled guilty to aggravated burglary and attempted theft in 09CR1902. On July 27, 2010, the district court imposed a controlling sentence of 136 months' imprisonment and granted a dispositional departure to probation with community corrections for 36 months. On May 17, 2010, Lynch pled guilty to burglary and theft in 09CR1903. On July 27, 2010, the district court imposed a controlling sentence of 34 months' imprisonment, consecutive to the sentence in 09CR1902, and granted a dispositional departure to probation with community corrections for 36 months. Lynch did not appeal his sentences.
On August 26, 2011, the district court revoked and reinstated Lynch's probation in each case. On May 31, 2012, Lynch admitted to violating his probation in each case by using cocaine. After hearing arguments on whether Lynch's probation should be reinstated, the district court revoked Lynch's probation and ordered him to serve his underlying sentences. Lynch filed a motion for reconsideration on the ground that the district court had failed to advise him of the rights he was waiving by admitting to the probation violation allegations. On June 8, 2012, the district court held a hearing and advised Lynch of his rights in relation to the probation violation allegations. Lynch again admitted to violating his probation by using cocaine, but he renewed his arguments that his probation should be reinstated. The district court again revoked Lynch's probation and ordered him to serve his underlying sentences. Lynch timely appealed.
On appeal, Lynch claims the district court erred by revoking his probation and ordering him to serve his underlying sentences. Specifically, Lynch contends that the district court erred in revoking his probation rather than giving him a chance at drug court because (1) Lynch completed drug treatment at Higher Ground, (2) he received a certificate from Kansas WORKready, (3) he has the ability to do well with additional drug treatment, (4) he never missed a drug treatment meeting, (5) he never missed a meeting with his probation officer, (6) he was working to receive his CDL, and (7) he was willing to do more drug treatment for as long as necessary to attempt to get over his drug addiction. Additionally, Lynch argues that he relapsed because of excessive stress in his life due to working long hours and being worried that his cancer may have returned.
Probation from service of a sentence 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). Once the State has proven a violation of the conditions of probation, probation revocation is within the sound discretion of the district court. State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). 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. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
Here, the district court noted that Lynch had received a dispositional departure to probation. In revoking Lynch's probation, the district court stated, “I've used all the resources I can use, I'm not [going to] use any more resources, and I don't think you're amenable to probation.” Based on the record on appeal, the district court's decision to revoke Lynch's probation was not arbitrary, fanciful, or unreasonable. We conclude the district court did not abuse its discretion by revoking Lynch's probation and ordering him to serve his underlying sentence.
Lynch also claims the district court erred by denying his motion to reconsider his probation revocation “because the district court never specifically explained to him what rights he was waiving by admitting to the probation violation allegations.” This assertion is not supported by the record because the district court explained to Lynch the rights he was waiving at the hearing on June 8, 2012, and Lynch again admitted to violating his probation by using cocaine.
Lynch also claims that the district court violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by using his prior criminal history to enhance his sentences and by sentencing him to the aggravated numbers in the appropriate gridbox without proving the aggravating factors to a jury beyond a reasonable doubt. But Lynch failed to timely appeal his sentences within 14 days of the sentencing hearing. See K.S.A.2011 Supp. 22–3608(c). The right to appeal is entirely statutory and is not found in either the United States Constitution or the Kansas Constitution. Because the filing of a timely notice of appeal from a sentence is jurisdictional, Lynch's failure to do so deprives this court of jurisdiction to review his sentences. See Barr v. State, 287 Kan. 190, 193, 196 P.3d 357 (2008). Thus, we dismiss Lynch's untimely attempt to appeal his sentences.
Affirmed in part and dismissed in part.