Opinion
No. 106,647.
2012-05-11
STATE of Kansas, Appellee, v. Nicholas C. BRANDT, Appellant.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge.
Before STANDRIDGE, P.J., MARQUARDT and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Nicholas Brandt filed a motion for summary disposition of his appeal pursuant to K.S.A. 21–4721(g) and (h) and Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 60). He has raised many sentencing errors, as well as the revocation of his probation, in his motion. The State does not contest the summary disposition of Brandt's case; however, it states that the facts and authorities clearly preclude relief for Brandt. We have reviewed the record on appeal and affirm the district court's revocation of Brandt's probation.
On January 12, 2011, Brandt pled guilty to aggravated assault and battery. He also pled guilty that same day to possession with intent to distribute a controlled substance and possession of materials with intent to distribute or manufacture a controlled substance. At Brandt's sentencing hearing, the court stated: “He's going to go to prison if he violates this probation.” He was sentenced on March 3, 2011, to a controlling term of 46 months in prison but was granted 18 months of probation and assigned to community corrections. As conditions of Brandt's probation, he was to report a change of address, employment, or telephone number to community corrections within 24 hours. He was also required to have full-time employment or be actively seeking employment at any time when he is unemployed.
On July 21, 2011, a warrant was issued for Brandt's arrest because he failed to notify his intensive supervision officer within 24 hours after being fired from his job, failed to maintain full-time employment, and failed to tell the truth about where he was living.
On August 4, 2011, the district court held a probation revocation hearing at which Brandt admitted the probation violations. The court revoked Brandt's probation and imposed his underlying prison sentence. Brandt appeals.
Brandt claims that “his circumstances sufficiently outweighed any violations of probation”; however, he never states what those circumstances are. Once there has been evidence of a probation violation, 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 revoked Brandt's probation. See State v. Robertson, 279 Kan. 291, 308, 109 P.3d 1174 (2005).
At sentencing, the district court was very direct in telling Brandt that if he violated the terms of his probation, he would be sent to prison. We find that the district court did not abuse its discretion in revoking Brandt's probation.
Brandt also alleges that “the district court erred in using his prior criminal history for sentencing purposes” without proving it beyond a reasonable doubt to a jury. This issue has already been decided adversely to Brandt and is without merit, as we do not have jurisdiction; therefore, it is dismissed. See State v. Ivory, 273 Kan. 44, 45–48, 41 P.3d 781 (2002).
Affirmed in part and dismissed in part.