Opinion
No. 107,625.
2013-05-17
STATE of Kansas, Appellee, v. Joe R. FORD, Appellant.
Appeal from Sedgwick District Court; J. Patrick Walters, Judge. Lydia Krebs, of Capital Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; J. Patrick Walters, Judge.
Lydia Krebs, of Capital Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., GREEN and McANANY, JJ.
MEMORANDUM OPINION
PER CURIAM.
Joe R. Ford appeals the district court's revocation of his probation and refusal to reinstate it. He also appeals the district court's imposition of the statutory maximum sentence in a second case against him. We affirm.
In September 2010, Ford pled guilty to possession of cocaine and driving under the influence. He was sentenced in February 2011. He was granted 18 months' probation, with an underlying controlling sentence of 34 months' imprisonment for his two convictions.
In April 2011, the district court revoked Ford's probation for his admitted use of drugs and alcohol in violation of the terms of his probation but then reinstated probation, requiring Ford to complete a drug and alcohol treatment program.
Then in October 2011, Ford pled guilty in another case to felony driving under the influence of alcohol, his third DUI conviction, and related charges. In January 2012, the court held a sentencing hearing in the felony DUI case and a probation violation hearing in the earlier case. The district court sentenced Ford to a controlling term of 12 months' imprisonment for the convictions in his felony DUI case. Under K.S.A.2010 Supp. 8–1567(f), this was the maximum sentence available for Ford's felony DUI conviction.
In Ford's earlier case he admitted to testing positive for cocaine and alcohol, and the district court found that he had violated the terms of his probation and was not amenable to probation. The court revoked probation and sent Ford to prison to serve his sentence in his first case, to be followed by his sentence for his felony DUI conviction.
Ford appeals. First, he argues that the district court erred in revoking his probation in his first case and imposing the underlying prison sentence.
The law on probation is settled. Unless required by law, probation is granted as a privilege and not as a matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once a probation violation has been established, the decision to revoke probation is within the sound discretion of the district court. 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). 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 denied132 S.Ct. 1594 (2012).
Ford admitted his probation violations. We find nothing unreasonable about the district court's decision to revoke Ford's probation. The district court did not abuse its discretion in revoking Ford's probation and ordering him to serve his underlying sentence. We affirm this portion of Ford's appeal.
Ford also challenges his sentence in his felony DUI case. The district court imposed the maximum statutory sentence of 12 months' imprisonment for this conviction. See K.S.A.2010 Supp. 8–1567(f). Under K.S.A.2010 Supp. 8–1567(f), the district court had discretion to impose a sentence of not less than 90 days nor more than 1 year imprisonment. A sentence imposed within these limits will not be disturbed on appeal if it is within the district court's discretion and not a result of partiality, prejudice, oppression, or corrupt motive. See State v. McCloud, 257 Kan. 1, 9, 891 P.2d 324 (citing State v. Turner, 252 Kan. 666, Syl. ¶ 1, 847 P.2d 1286 [1993] ),cert denied516 U.S. 837 (1995).
On appeal, Ford does not argue that this sentence is the product of partiality, prejudice, oppression, or corrupt motive by the district court. Thus, he fails to show any abuse of the court's discretion in imposing the statutory maximum sentence in his felony DUI case.
Affirmed.