Opinion
No. 108,572.
2013-11-4
STATE of Kansas, Appellee, v. Bernardo CAMPOS, Jr., Appellant.
Appeal from Sedgwick District Court; J. Patrick Walters, Judge.
Submitted for summary disposition under K.S.A.2012 Supp. 21–6820(g) and (h).
Before ARNOLD–BURGER, P.J., GREEN, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Bernardo Campos, Jr., appeals from a judgment of the trial court revoking his probation and ordering him to serve his underlying sentence. He also challenges aspects of his original sentence. We granted Campos' motion for summary disposition in lieu of briefs under Supreme Court Rule 7.041a (2012 Kan. Ct. R. Annot. 62). The State filed a response and joined in Campos' motion for summary disposition. Concluding that the trial court did not abuse its discretion in revoking Campos' probation, we affirm this aspect of his appeal. Moreover, concluding that we have no jurisdiction over Campos' challenge to his original sentence, we dismiss this aspect of his appeal.
On December 16, 2010, Campos pled no contest to one count of battery and one count of criminal restraint, and he pled guilty to three counts of fleeing or attempting to elude an officer and one count of cruelty to animals. On March 21, 2011, the trial court sentenced him to a controlling sentence of 38 months' imprisonment, suspended his sentence, and placed Campos on probation for 12 months. On July 13, 2011, Campos' probation was revoked and reinstated for an additional 12 months based on Campos' failure to report to his intensive supervision officer (ISO).
Again, on February 15, 2012, the trial court revoked and reinstated Campos' probation for an additional 12 months based on Campos' failure to make court payments, failure to maintain employment, failure to report to his ISO, failure to attend drug/alcohol treatment, and his failure to perform community service work.
Finally, on August 2, 2012, the trial court again revoked Campos' probation for his failure to report to his ISO. At the revocation hearing, Campos' attorney requested that the trial court modify the underlying sentence because Campos was taking responsibility for his actions. The trial court refused to modify the underlying sentence and ordered Campos to serve the 38–month sentence originally imposed. Campos timely filed his notice of appeal.
On appeal, Campos, in his motion for summary disposition, argues that the trial court abused its discretion when it revoked his probation and that the trial court erred in refusing to modify his sentence to make his prison term run concurrent with the jail term. The State responds that the trial court's decision to revoke Campos' probation was not an abuse of discretion.
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 trial 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 a reasonable person could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
Here, Campos stipulated to violating his probation by failing to report to his ISO. We note with significance that Campos twice violated his probation for the same reason. Based on the record on appeal, the trial court's decision to revoke Campos' probation was not arbitrary, fanciful, or unreasonable. We conclude the trial court did not abuse its discretion by revoking Campos' probation and ordering him to serve his underlying sentence.
Campos also attempts to challenge aspects of his original sentence as a part of this appeal by arguing the following: (1) that the trial court erred in failing to modify his original sentence; (2) that the trial court erred in using his criminal history without proving it to a jury; (3) and that the trial court violated his Sixth and Fourteenth Amendment rights when it sentenced him to the aggravated sentence without proving it to a jury. When Campos was sentenced, a criminal defendant had 14 days after the entry of judgment to file an appeal. K.S.A.2012 Supp. 22–3608(c). Thus, Campos' challenge to his sentence is untimely and must be dismissed. Additionally, based on Kansas Supreme Court precedent, Campos' arguments fail. See State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002) (not unconstitutional to use criminal history to enhance a sentence without a jury determination); see also State v. Burnett, 293 Kan. 840, 856, 270 P.3d 1115 (2012) (appellate court shall not review any sentence that is within the presumptive sentence for the crime).
Affirmed in part and dismissed in part.