Opinion
111,919.
05-08-2015
STATE of Kansas, Appellee, v. Maurice L. ALLEN, Appellant.
Corrine E. Johnson, of Kansas Appellate Defender Office, for appellant. Mark J. Noah, county attorney, and Derek Schmidt, attorney general, for appellee.
Corrine E. Johnson, of Kansas Appellate Defender Office, for appellant.
Mark J. Noah, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., POWELL, J., and MERLIN G. WHEELER, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
Maurice Allen appeals from the district court's order revoking his probation and imposing the underlying prison sentence. On appeal, Allen argues the district court erred in its discretionary determination of whether to revoke his probation and that no reasonable person would have taken the district court's view. Finding no error, we affirm.
Factual and Procedural Background
On June 6, 2012, Allen entered a no-contest plea to one count each of aggravated burglary, a severity level 5 person felony; burglary, a severity level 7 person felony; and theft, a class A nonperson misdemeanor. At sentencing, the district court noted that Allen was in a border box classification for sentencing but that the court would exercise its discretion to grant him probation for a duration of 36 months with a total underlying prison sentence of 36 months. During the sentencing colloquy the district court specifically advised Allen that its sentence meant that he was to follow each and every condition of probation and that violation of the probation would result in his service of the prison term. Allen acknowledged the admonition given him by the district court.
Little more than 1 year later, on July 24, 2013, the State filed its motion for revocation of Allen's probation. The motion alleged that Allen had absconded from probation, had new felony warrants in North Carolina, and had a new misdemeanor conviction. Allen's intensive supervision officer (ISO) testified that since the filing of her initial report, Allen had also been convicted of breaking and entering in North Carolina for which he served approximately 6 months with the North Carolina Department of Corrections. His ISO did, however, testify that Allen “did okay” for the first year of probation before running into “on-going issues” thereafter.
Following the evidentiary hearing, the district court found the State had shown by a preponderance of the evidence that Allen had violated the terms of his probation. Consistent with its admonition at the time of sentencing, the district court revoked Allen's probation and imposed his underlying 36–month prison term. Allen timely appeals.
Did the District Court Abuse its Discretion when it Revoked Allen's Probation and Imposed the Underlying Prison Sentence?
Burden of proof and standard of review
To sustain an order revoking probation, the violation of the conditions of probation must be established by a preponderance of the evidence. State v. Lumley, 267 Kan. 4, 8, 977 P.2d 914 (1999). Upon establishing 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. State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). Judicial discretion is abused when no reasonable person would have taken the position taken by the trial court. State v. Robertson, 279 Kan. 291, 308, 109 P .3d 1174 (2005).
The district court did not abuse its discretion in revoking Allen's probation
Allen argues that no reasonable person would have taken the district court's view and revoked his probation. Notably, Allen admits to violating his probation conditions but argues that his convictions were nonviolent offenses committed in North Carolina and should not have subjected him to revocation. He further argues that he had already completed the prison sentence in North Carolina for the felony conviction, thus rendering the revocation of his probation in Kansas needless, especially given his current lack of ties to Kansas. Allen contends that the district court had alternate options that would have been more beneficial to him. Allen does not argue that the factual findings made by the trial court were incorrect.
The State responds simply that Allen was required to obey the law and cooperate with the supervising agency and he failed in both efforts. The State also points out the district court's explicit warning to Allen of the consequences of failing to follow the terms of his probation.
“Probation from serving a sentence is generally considered ‘an act of grace by the sentencing judge and, unless otherwise required by law, is granted as a privilege and not as a matter of right.’ “ State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006) (quoting Lumley, 267 Kan. at 8 ).
In light of the unrefuted evidence of the nature and extent of violations of his probation conditions, it is apparent that the district court appropriately exercised its discretion in revoking his probation upon proof of those violations. This is particularly true in light of the provisions of K.S.A.2014 Supp. 22–3716(c)(8), which specifically allow a district court to revoke a defendant's probation based on a new conviction. Compliance with the provisions of this statute cannot be said to be an abuse of discretion on the part of the trial court.
Allen's argument that other options would be more beneficial to him fails to demonstrate that no reasonable person would have agreed with the decision of the district court. Therefore, this court will not disturb the district court's decision on appeal.
Affirmed.