Opinion
112,629.
05-29-2015
STATE of Kansas, Appellee, v. Paul DELPERCIO, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Paul Delpercio appeals the district court's decision revoking his probation and ordering him to serve his underlying prison sentence. We granted Delpercio's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 66). The State has filed no response.
On May 2, 2012, Delpercio pled no contest to one count of aggravated battery. On June 6, 2012, the district court sentenced Delpercio to 66 months' imprisonment but granted probation with community corrections for 36 months. Delpercio did not timely appeal his sentence.
On September 13, 2013, the State filed a motion alleging that Delpercio was in violation of his probation by using cocaine, by failing to submit to a drug screen on one occasion, and by failing to pay court costs. At a hearing on September 25, 2013, Delpercio stipulated to the violations. The district court revoked and reinstated probation and ordered Delpercio to serve 120 days with the department of corrections as a sanction.
On June 20, 2014, the State filed a motion for probation revocation on the grounds that Delpercio failed to submit to multiple drug screens and he failed to report to his intensive supervision officer (ISO). On the same date, a bench warrant was issued for Delpercio's arrest on the ground that he was an absconder.
At a hearing on September 5, 2014, Delpercio did not contest that he violated his probation by failing to report. He asked that his probation be extended so that he could receive drug treatment. After specifically finding that Delpercio had absconded from probation, the district court revoked probation and ordered Delpercio to serve his underlying prison sentence. Delpercio timely appealed the probation revocation.
On appeal, Delpercio contends that the district court should have extended his probation due to his drug addiction. Delpercio claims that he did not report to his ISO “because he did not want to come in and drop positive drug tests.” Referring to this excuse as a “mitigating” circumstance, Delpercio claims the district court erred in revoking his probation and ordering him to serve his original sentence.
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).
Here, the district court had given Delpercio a second chance at probation after a prior violation. Delpercio responded by continuing to use drugs and absconding from probation. The district court's decision to revoke Delpercio'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 Delpercio's probation and ordering him to serve his underlying prison sentence.
Delpercio 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 criminal history to determine his sentence. However, Delpercio did not timely appeal his sentence which was imposed on June 6, 2012. See K.S.A.2014 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 Delpercio did not timely appeal his sentence, this court lacks jurisdiction to consider his Apprendi claim.
Affirmed in part and dismissed in part.