Opinion
112,041.
05-29-2015
STATE of Kansas, Appellee, v. Angela G. ELLISON, Appellant.
Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant. Patrick Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant.
Patrick Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., HILL and ATCHESON, JJ.
MEMORANDUM OPINION
LEBEN, J.
Angela Ellison was serving probation for cultivation of marijuana when she was charged with violating her probation in December 2013. The State alleged she had committed several probation violations: she had been arrested for driving under the influence, she had missed appointments with her probation officer and broken her curfew, she had left the state without permission, she had tested positive for drugs and alcohol, and she had not successfully completed drug treatment. The district court revoked Ellison's probation and, concluding that Ellison was not amenable to probation, imposed her prison sentence of 33 months rather than giving her another chance on probation.
Ellison appeals, arguing that the district court abused its discretion in light of mitigating factors that could have justified giving her a second chance on probation. But it's within the district court's discretion whether to revoke probation once a violation has been established. On the facts of this case, we find no abuse of discretion in revoking Ellison's probation.
Factual and Procedural Background
In September 2010, police were called to Ellison's home for a domestic dispute. Her sister informed the responding officer that Ellison was growing marijuana in the house. The officer obtained a search warrant, and police later came back to discover 69 marijuana plants growing in a closet. They also found two pipes that tested positive for THC.
Ellison says that nothing came of the search until nearly a year later, when she was arrested for cultivation of marijuana within 1,000 feet of a school and possession of drug paraphernalia. The charges were later amended to two counts of cultivation of marijuana—one stemming from the September 2010 incident and the other based on officers' discovery of marijuana plants when they came to arrest her in September 2011. She pled no contest to both counts, and the district court accepted those pleas. It found her guilty of two counts of cultivation of marijuana, both severity–level–3 drug felonies.
Ellison's criminal history placed her in a “border box” for sentencing purposes, meaning that the sentence for her crime would typically be prison but that the court could give her a nonprison sentence if it found that she (or the community) would benefit from her participation in a drug-treatment program. Ellison filed a motion for probation or departure, arguing that she had identified available treatment programs that would fulfill the recommendations of a drug assessment she had completed.
In May 2012, the district court held a sentencing hearing and considered Ellison's motion. The judge told Ellison she believed Ellison had an addiction—not simply a disregard for the law—and that she would be better served by treatment than prison. The court sentenced Ellison to 18 months of probation with an underlying prison term of 33 months (18 months for the first count of cultivation plus 15 months for the second). The judge told Ellison, “I feel like I'm taking a big chance in granting you probation” and reminded her of the long prison term she would face if she didn't “toe the line.” That meant following the terms of her probation, including obeying all laws, reporting to her probation officer, getting permission to leave the state, abstaining from drugs and alcohol, and complying with the recommendations in her substance-abuse evaluation. In addition to those terms, Ellison was placed under an 8 p.m. curfew about a year later.
In September 2013, Ellison's probation officer filed an affidavit alleging several probation violations: failing to obey the law (Ellison had been charged with driving under the influence) in May 2013, missing two scheduled appointments with her probation officer in December 2012 and January 2013, leaving the state without permission in July 2013, missing curfew on five occasions between May and September 2013, and testing positive for marijuana, cocaine, and alcohol in May 2013. Ellison entered a guilty plea to her DUI charge and agreed to serve a short sentence in that case. She also admitted to some of the other probation violations: she said she had violated curfew at least once, traveled to Texas without authorization, and tested positive for marijuana.
Before the hearing on the allegations, Ellison's probation officer added two more violations: failing to complete the treatment program recommended in her substance-abuse evaluation and testing positive for alcohol in a breath test.
At the probation-violation hearing held December 23, 2013, Ellison acknowledged that she had violated her probation. She explained that not all of the violations had been willful, however. She said that her unsuccessful discharge from drug treatment had been based on a miscommunication and that she had gone to Texas without permission because she had had trouble sending the documents needed to authorize the trip to her probation officer. She also told the court that she had been attending school, counseling, and drug treatment while on probation.
But Ellison's probation officer told the court that Ellison would not benefit from having her probation reinstated. She said Ellison had told her she could not handle being on probation and would continue to use drugs once she was released. Ellison acknowledged that she had been frustrated and said she wanted to give up but that she was now trying to comply with the court's orders.
The court revoked Ellison's probation, concluding based on her positive drug tests and DUI conviction that drug treatment was not working. The court ordered her to serve the original sentence of 33 months in prison with 24 months of supervision once she is released. Ellison has appealed to this court.
Analysis
On appeal, Ellison argues that the district court abused its discretion by imposing her prison sentence. She admits to violating her probation but says that the court should have considered her violations in context and given her a nonprison sanction based on mitigating factors—like her attempts to contact her probation officer before leaving the state and her success in school while on probation. She argues that giving up marijuana completely “is no easy task, particularly for a person ... who has smoked marijuana most of her adult life,” and she believes that the court's failure to recognize this by giving her another chance at probation was unreasonable.
The legal rules applicable to this appeal are straightforward. A district court's decision to revoke probation must be based on a factual finding that a condition of probation has been violated. Once a violation has been established, the decision to revoke probation has been traditionally considered within the discretion of the district court. See State v. Skolaut, 286 Kan. 219, 227–28, 182 P.3d 1231 (2008) ; State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001).
During the course of Ellison's case, the statute governing probation revocation was amended to limit the court's discretion. K .S.A.2013 Supp. 22–3716(b) –(c) requires that the district court impose intermediate sanctions before ordering that the defendant serve the underlying prison term unless the defendant has committed a new crime. But Ellison does not argue that the district court should have imposed intermediate sanctions under this statute, and we consider an issue not briefed to have been waived on appeal. See State v. Kingsley, 299 Kan. 896, 900, 326 P.3d 1083 (2014). (In addition, the State noted in its brief on appeal that several of Ellison's probation violations occurred before July 1, 2013, the effective date of the amended statute; also, Ellison had committed a new crime, a DUI, which would let the court skip intermediate sanctions even if the new statute applied.)
Because Ellison does not brief an argument that intermediate sanctions were required under K.S.A.2013 Supp. 22–3716(b) –(c), we will consider her appeal based on the argument she does make—that the district court abused its discretion when it imposed her underlying prison sentence. Ellison is correct that we review the district court's decision to revoke probation for an abuse of discretion. Unless the district court has made a legal or factual error, we may find an abuse of discretion only when no reasonable person would agree with the district court's decision. State v. McCullough, 293 Kan. 970, 981, 270 P.3d 1142 (2012) ; State v. Gumfory, 281 Kan. 1168, Syl. ¶ 1, 135 P.3d 1191 (2006).
While Ellison argues that the court should have focused on the mitigating factors in her case, we find nothing unreasonable about its decision here. The district court had granted Ellison probation to give her a chance at drug treatment, but Ellison had not stopped using drugs and had been unsuccessfully discharged from her last drug-treatment program. Her probation officer also testified that Ellison was not amenable to probation. Indeed, Ellison continued her illegal behavior throughout this case: she continued to grow marijuana after the police discovered plants in her house in 2010, she continued to use marijuana after entering her no-contest plea in 2012, and she admitted telling her probation officer in 2013 that she would abstain from marijuana for “as long as I have to,” which her probation officer and the district court reasonably took to mean she intended to start using again after she had completed probation.
In addition to her drug-related violations, Ellison failed to comply with conditions of probation that were not explained by substance dependence—missing appointments with her probation officer, going to Texas without permission, and breaking curfew. With over a dozen violations between December 2012 and December 2013—most of which Ellison admits she committed—it was not unreasonable for the district court to conclude that Ellison was not amenable to probation and to revoke it.
The judgment of the district court is therefore affirmed.