Opinion
No. 106,407.
2012-07-27
STATE of Kansas, Appellee, v. John W. ENGLAND, Appellant.
Appeal from Osage District Court; Phllip M. Fromme, Judge. Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Brandon L. Jones, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Osage District Court; Phllip M. Fromme, Judge.
Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Brandon L. Jones, county attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
John W. England appeals the trial court's revocation of his probation. On appeal, England argues that the State failed to present sufficient evidence to establish that he violated his probation and that the trial court abused its discretion in revoking his probation. We disagree. Accordingly, we affirm.
On November 30, 2009, England pled no contest to one count of felony driving under the influence. Later, on January 25, 2010, the trial court sentenced England to 12 months' probation, with an underlying jail term of 12 months. Before England's probation began, he was required to serve 2 days in county jail immediately followed by 88 days of house arrest. A condition of England's house arrest required him to wear a bracelet that contained an alcohol monitor.
Eighteen days later, England returned his house arrest equipment, apparently taking himself off of house arrest. England was then arrested and held in custody for violating his house arrest. On April 13, 2010, the trial court held a hearing for England's house arrest violation. At the hearing, the trial court allowed England to continue house arrest as long as he wore a bracelet with an alcohol monitor before he left custody.
After England began serving his probation, the State filed a motion to revoke his probation. The State alleged that England violated his probation for the following reasons: (1) that he tested positive for alcohol, cocaine, Benzodiozepines, and opiates; (2) that he failed to complete an intensive outpatient treatment program recommended by Adolescent, Adult Family Recovery, Inc.; and (3) that he failed to make payments on his court debt. The trial court held a hearing to determine if England had violated his conditions of probation.
At the probation revocation hearing, England's probation supervisor, Danielle Parris, testified that England violated his probation for the same reasons listed in the State's motion to revoke. The trial court ruled that the State had met its burden to establish that England had violated his conditions of probation and revoked his probation. Nevertheless, the trial court reinstated England's probation with new conditions. England's new conditions required him to obtain a substance abuse evaluation from the Heartland Regional Alcohol and Drug Assessment Center (RADAC) and to follow all of RADAC's treatment recommendations.
Terra Prescott, a RADAC employee, completed England's evaluation and recommended that he participate in an inpatient treatment program at Valeo Recovery Center in Topeka, Kansas. Instead of following RADAC's recommendation, England sent a letter addressed to Prescott. In part, England's letter contained the following statements:
“I am writting [ sic ] this to give you a chance to reavaluate [ sic ] your rediculase [ sic ] findings and resend [sic] this order to the court.
“You said that I would be level 1 outpaitent [ sic ]. What is this[?] Do not jepredise [ sic ] your career by playing this game, and there for [ sic ] adding yourself to this suit that I am building against the city of Lyndon (Osage County)....
“P.S. You have know [ sic ] idea what my triggers cause me to do. Years ago all 1 did was phiscily [ sic ] hurt people. I have cence [ sic ] found a more profitable way to get even. So please join the party.”
Because of England's letter, the State moved to revoke his probation. The State alleged that England violated his probation when he sent the letter disagreeing with RADAC's recommendation instead of following their treatment recommendation as required by his probation. At the probation revocation hearing, the State argued that England's demand letter showed that he had failed to comply with RADAC's recommendation and that the letter constituted a veiled threat. On the other hand, England testified and tried to give innocent explanations for the letter. The trial court, however, disagreed with England's explanations, ruled that he had violated his probation, and revoked his probation.
England argues that the State failed to meet its burden to show that he had violated his probation. Specifically, England contends that he did not violate his probation when he sent RADAC the letter requesting a reevaluation of its treatment recommendation. The State disagrees with England's assertion and argues that there was sufficient evidence to establish that England had violated his probation.
Kansas law on probation revocations is well settled. Our Supreme Court has stated: “To sustain an order revoking probation on the ground that a probationer has committed a violation of the conditions of probation, commission of the violation must be established by a preponderance of the evidence.” State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). A preponderance of the evidence means evidence that is “ ‘ “of greater weight or more convincing than the evidence which is offered in opposition to it.” ‘ “ In re B.D.-Y, 286 Kan. 686, 691, 187 P.3d 594 (2008).
England argues that “the conditions of probation placed no limits on Mr. England in terms seeking revaluation or pursuing legal remedies for perceived injuries in civil suits.” England's argument is misplaced. When the trial court revoked and reinstated England's probation, it included a new condition. The new condition required England to receive a substance abuse evaluation from RADAC and to follow its treatment recommendation. Instead of following the recommendation, England sent a letter to Prescott demanding that she change her recommendation. In sending the letter, England failed to comply with the terms of his probation because he did not follow RADAC's treatment recommendation.
Although England gave a reason why he sent the letter during his testimony at the revocation hearing, his reason is unpersuasive. At the hearing, England maintained that he sent the letter to RADAC because the treatment recommendation was different from what he previously had discussed with Prescott. England testified that Prescott had promised him that he would receive outpatient treatment. England maintained that he had told Prescott about an evaluation that he completed at Kansas City Community Center (KCCC), which recommended outpatient treatment. After England told Prescott about the KCCC evaluation, she allegedly agreed to recommend a treatment program similar to the recommendation of KCCC.
The trial court found England's explanation unconvincing because he failed to provide the court with any documentation to support his allegation. The court stated:
“All along we've heard about some other evaluation that was done in Kansas City, yet [England has] had ample opportunities to come up with a copy of that evaluation or put us in touch with those who evaluated him. And we're here today on an evidentiary hearing and he's failed to produce anything but his own verbal statements about that evaluation and what the results were.”
The trial court's statement is correct. Without the KCCC evaluation, it would be unreasonable for England to ask for a reevaluation. Regardless, England's probation included a condition that required him to receive a substance abuse evaluation and to follow any recommendation of that evaluation. England's letter showed that he was unwilling to follow RADAC's treatment recommendation. Indeed, the letter was merely an implied threat that England would take action against Prescott unless she made the recommendation that he wanted. Thus, England violated his probation when he sent Prescott the letter. Consequently, the trial court did not err in ruling that England had violated his probation.
Next, we must determine if the trial court abused its discretion in revoking England's probation. 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 reasonable persons 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. [Citation omitted.]” State v. Gant, 288 Kan. 76, 81–82, 201 P .3d 673 (2009). The party asserting that the trial court abused its discretion bears the burden of showing such abuse of discretion. State v. Wells, 289 Kan. 1219, 1226, 221 P.3d 561 (2009).
England has failed to meet his burden to prove that the trial court abused its discretion in revoking his probation. The trial court apparently felt that England's repeat offenses showed that he was not amenable to probation. Indeed, the trial court had given England an opportunity to complete probation even after he had violated his house arrest, tested positive for drugs, and failed to complete outpatient treatment. Under the record on appeal, the trial court's decision to revoke England's probation was not arbitrary, fanciful, or unreasonable. Consequently, the trial court did not abuse its discretion in revoking England's probation and ordering him to serve his underlying sentence.
Affirmed.