Opinion
No. 111,394.
2014-10-31
STATE of Kansas, Appellee, v. Pierre YOUNG, Appellant.
Appeal from Sedgwick District Court; John J. Kisner, Jr., Judge.
Submitted for summary disposition pursuant to K.S.A.2013 Supp. 21–6820(g) and (h).
Before SCHROEDER, P.J., BUSER and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Pierre R. Young appeals the revocation of his probation. We find no abuse of discretion by the district court and affirm the revocation of his probation.
Facts
Young was found guilty by a jury of aggravated assault with the use of a deadly weapon, interference with law enforcement, and criminal threat. Young was sentenced to 12 months' imprisonment on Count 1, to 5 months' imprisonment on Count 2, and to 5 months' imprisonment on Count 3. All three sentences were ordered to be served consecutively. In addition, Young was ordered to pay restitution and court costs and was placed on supervised probation for 24 months.
Young's intensive supervision officer (ISO) reported Young had been uncooperative, did not fully cooperate with completion of the level of service inventory-revised (LSI–R), did not indicate compliance with probation conditions, and indicated he may harm himself. At Young's probation violation hearing, the district court continued the hearing and requested a competency evaluation to determine whether Young was able to understand the nature and purpose of the proceedings against him and whether Young was able to make or assist in his defense. The competency evaluation found Young would benefit from medication therapy, would be an unwilling probation participant, and was unlikely to successfully complete probation. The competency evaluation report ordered by the court was discussed during the probation revocation hearing. Young also admitted he did not fully cooperate with his ISO to complete the LSI–R and that on November 22, 2013, he was late for an appointment with his ISO. Young denied refusing to obey the directives of his ISO. The district court found Young was either unwilling and/or incapable of completing the terms and conditions of his probation. The district court revoked Young's probation and ordered Young to serve a modified 17–month imprisonment with no postrelease supervision pursuant to K.S.A.2012 Supp. 22–3716(e).
Analysis
Did the District Court Abuse Its Discretion by Revoking Young's Probation?
A probationer may not have his probation revoked unless it is shown he has failed to comply with the terms and conditions of his probation. State v. Gary, 282 Kan. 232, 238, 144 P.3d 634 (2006).
“To sustain an order revoking probation on the ground that a probationer has committed a violation of the conditions of probation, commission of the violation must be established by a preponderance of the evidence. [Citation omitted.] Once there has been evidence of a violation of the conditions on which probation was granted, the decision to revoke probation rests in the sound discretion of the district court. [Citation omitted.]” State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006).
A judicial action constitutes an abuse of discretion if the action is arbitrary, fanciful or unreasonable, based on an error of law, or 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). Based on Young's 2012 felony offenses, K.S.A.2012 Supp. 22–3716(b) provides:
“[I]f ... [a] violation is established, the court may ... revoke the probation ... and may require the defendant to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.”
Young argues the district court abused its discretion by revoking his probation and imposing the underlying prison sentence; however, Young acknowledges that Gumfory, 281 Kan. at 1170, gives the district court the discretion to revoke probation upon a showing the defendant violated the terms of his probation. Judicial discretion is abused when no reasonable person would take the position of the district court. State v. Robertson, 279 Kan. 291, 308, 109 P.3d 1174 (2005).
Young's probation violations were proven by a preponderance of the evidence when Young admitted to violating at least two conditions of his probation. Upon Young's admission to violating his probation conditions, the district court had the discretion to revoke his probation. In revoking Young's probation, the district court judge found:
“I don't think that Mr. Young is amenable to probation. I understand that he's kind of having the eleventh hour change of heart, but the underlying offense, again his refusal to comply with probation, his refusal to comply with the Court's orders with regard to the evaluation indicate to me he's either unwilling and/or incapable of completing what is going to be significant number of terms and conditions of probation. So I'm going to revoke his probation.”
Young has failed to show how the district court's decision to revoke his probation was arbitrary, fanciful, unreasonable, based on an error of law, or based on an error of fact. Young has failed to show the district court abused its discretion by revoking his probation. The district court did not abuse its discretion in revoking Young's probation and reducing his controlling sentence to 17 months' imprisonment with no postrelease supervision.
Affirmed.