Opinion
No. 111,488.
2014-11-21
STATE of Kansas, Appellee, v. Christopher NEIL, Appellant.
Appeal from Sedgwick District Court; Christopher M. Magana, Judge.
Submitted for summary disposition pursuant to K.S.A.2013 Supp. 21–6820(g) and (h).
Before MALONE, C.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Christopher L. Neil appeals the district court's decision revoking his probation and ordering him to serve his underlying prison sentence. We granted Neil's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2013 Kan. Ct. R. Annot. 63). The State filed a response and requested that the district court's judgment be affirmed.
On April 12, 2012, Neil pled guilty to one count of aggravated burglary and one count of theft. On May 31, 2012, the district court imposed a controlling sentence of 50 months' imprisonment but granted a dispositional departure to probation with community corrections for 36 months. Neil did not timely appeal his sentence.
On March 11, 2013, a probation violation warrant was filed alleging that Neil had committed a new offense of aggravated battery and that he had violated his curfew. At a hearing on October 23, 2013, Neil stipulated to the probation violations, including the commission of a new crime. The district court revoked Neil's probation and ordered him to serve his underlying prison sentence. Neil timely appealed.
On appeal, Neil contends that the district court erred in revoking his probation and ordering him to serve his original sentence without first imposing an intermediate sanction under K.S.A.2013 Supp. 22–3716 because while he was on probation he maintained full-time employment and completed treatment. He also completed his GED program and made payments on his court costs and probation fines. He also completed some community service and attempted to control his alcohol addiction. Neil contends that his probation violations were outweighed by these mitigating factors.
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). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). The party asserting the district court abused its discretion bears the burden of showing such abuse of discretion. State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).
As Neil acknowledges, K.S.A.2013 Supp. 22–3716(c)(8) provides that if the offender commits a new felony or misdemeanor while on probation, the district court may revoke probation without having previously imposed an intermediate sanction. Because Neil committed the new crime of aggravated battery while on probation, the district court was not required to consider an intermediate sanction before revoking Neil's probation. The district court's decision to revoke Neil's probation was not arbitrary, fanciful, or unreasonable, and the decision was not based on an error of law or fact. See Ward, 292 Kan. at 550. Thus, we conclude the district court did not abuse its discretion in revoking Neil's probation and ordering him to serve his underlying prison sentence.
Neil also contends 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 juvenile adjudication to increase his sentence without proving the juvenile adjudication to a jury beyond a reasonable doubt. But as the State points out, Neil did not timely appeal his sentence which was imposed on May 31, 2012. See K.S.A.2011 Supp. 22–3608(c); State v. Inkelaar, 38 Kan.App.2d 312, 317–18, 164 P.3d 844 (2007), rev. denied 286 Kan. 1183 (2008) (defendant's notice of appeal was timely only as to his probation revocation and not as to his original sentence). Because Neil did not timely appeal his sentence, this court lacks jurisdiction to consider his Apprendi claim.
Affirmed in part and dismissed in part.