Opinion
No. 107,812.
2013-07-5
STATE of Kansas, Appellee, v. Christopher FRANCO, Appellant.
Appeal from Finney District Court; Philip C. Vieux, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Megan Massey, assistant county attorney, Susan H. Richmeier, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Finney District Court; Philip C. Vieux, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Megan Massey, assistant county attorney, Susan H. Richmeier, county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., POWELL, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Christopher Franco appeals from the revocation of his probation. He alleges that the district court violated his due process rights by failing to hold an evidentiary hearing and by failing to make a finding that he had violated the terms of his probation. The record on appeal clearly establishes that the district court did, indeed, conduct an evidentiary hearing and did make the appropriate findings of violation. Accordingly, we affirm.
Factual Background
On April 19, 2010, Franco pled no contest to two counts of aggravated assault. He was sentenced to a controlling term of 16–months' imprisonment but granted 24–months' probation.
On November 7, 2011, the State filed a motion for revocation of Franco's probation. On November 28, 2011, Franco appeared before the district court. At this hearing, the State alleged that Franco had violated the terms of his probation by committing new crimes, failing to report as required, violating curfew, and consuming alcohol. Franco denied violating his probation and requested the State prove its allegations at an evidentiary hearing, which the court scheduled for December 20, 2011.
On December 20, 2011, the district court actually held two hearings. The first was an evidentiary hearing where the State presented the testimony of Carlos Murillo, Franco's probation officer. The State also presented, and the court admitted, certified journal entries of Franco's three new criminal convictions. Franco cross-examined the witness but produced no other evidence that he had not violated probation. He focused instead on several alleged excuses for his technical violations. At the conclusion of this first hearing, the district court found that Franco had violated his probation by committing new crimes, including aggravated criminal sodomy, failing to appear for office visits, failing to observe his curfew, and consuming alcohol. This hearing was recorded electronically, but the transcript was not filed until February 13, 2013.
The second hearing on December 20, 2011, involved the disposition of the revocation motion. The district court revoked Franco's probation and ordered him to serve the underlying prison sentence. This hearing was recorded by a court reporter, and the transcript was filed on July 2, 2012.
Franco filed timely notice of appeal, and the district court appointed the Appellate Defender to represent him.
On December 26, 2012, appellate counsel filed a brief claiming that Franco's due process rights had been violated because the district court had revoked his probation without holding an evidentiary hearing as requested. As noted above, the transcript of the electronically recorded evidentiary hearing was not filed until February 13, 2013. The State filed its brief on March 21, 2013, citing the recently filed transcript in support of its opposition to Franco's allegations.
Issue
The sole issue on this appeal is whether the district court violated Franco's due process rights by failing to hold an evidentiary hearing and by failing to make a finding that Franco had violated his probation.
Analysis
After granting probation, a district court cannot arbitrarily revoke defendant's probation as long as he or she satisfies the conditions of probation. See Swope v. Musser, 223 Kan. 133, 136, 573 P.2d 587 (1977); State v. Ottinger, 46 Kan.App.2d 647, 654, 264 P.3d 1027 (2011) (citing Musser ), rev. denied 294 Kan. –––– (May 4, 2012). In order to revoke a defendant's probation, the State must first present evidence which reasonably satisfies the district court that the defendant's conduct “has not been as good as that required by the conditions of probation.” Musser, 223 Kan. at 136. “Once there has been evidence of a violation of the conditions on which probation was granted, revocation is in the sound discretion of the district court.” State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). “Where there is discretion to continue or revoke probation, the probationer is entitled to an opportunity to show not only that he did not violate the conditions, but also that there was a justifiable excuse for any violation or that revocation is not the appropriate disposition.” State v. Skolaut, 286 Kan. 219, Syl. ¶ 5, 182 P.3d 1231 (2008).
It appears that this appeal arises out of a basic misunderstanding. It is correct that Franco's appellate counsel did not have the record of the December 20, 2011, evidentiary hearing when her brief was filed in December 2012 because the transcript had not yet been filed. However, the transcript was subsequently filed and was cited by the State in contradiction to Franco's claims. Franco has not filed a reply brief or any other proceeding alleging that this transcript is erroneous, nor has he suggested any legal or procedural reason why this court should not consider the transcript as part of the record on appeal.
The record on appeal clearly establishes that the district court did not violate Franco's due process rights. An evidentiary hearing was held and appropriate findings of violation were made, particularly regarding Franco's new criminal convictions. The district court considered and rejected Franco's proffered excuses for his technical violations of curfew and consumption of alcohol. The record amply supports the determination that Franco was “not amenable to probation,” and the district court exercised sound discretion in revoking Franco's probation.
Affirmed.