Opinion
No. 111,213.
2014-11-14
STATE of Kansas, Appellee, v. Darien Ellion FULTON, Appellant.
Appeal from Shawnee District Court; Richard D. Anderson, judge. Opinion filed November 14, 2014. Affirmed.
Submitted for summary disposition under K.S.A.2013 Supp. 21–6820(g) and (h).
Before MALONE, C.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Darien Ellion Fulton appeals the trial court's revocation of his probation and imposition of the underlying prison sentence for his conviction of burglary of a dwelling. Because Fulton admitted to violating a condition of his probation and because we find no abuse of the trial court's discretion, we affirm the trial court's revocation of Fulton's probation.
On March 20, 2012, the State charged Fulton with burglary of a dwelling, felony theft (of property valued between $1,000 and $25,000), and criminal damage to property. Fulton negotiated a plea agreement. In exchange for his no contest plea to the burglary charge, the State agreed to dismiss the remaining two charges. At the sentencing hearing on May 2, 2012, the trial court questioned Fulton about his understanding of the plea agreement and of the constitutional rights he would be waiving by entering a plea. The State provided a factual basis for the plea. Fulton entered a no contest plea, and the trial court accepted the plea.
At sentencing on June 19, 2012, the court imposed an underlying prison term of 13 months but suspended the sentence in favor of the presumptive 24–month probation period. The court ordered Fulton to serve probation with community corrections. The court imposed the standard conditions of probation.
On September 21, 2012, the State moved to revoke Fulton's probation, alleging that Fulton failed to report to his probation officer as scheduled and that Fulton failed to provide an accurate current residential address to his probation officer. Based on Fulton's stipulation to the first allegation, the court revoked the probation but reinstated it upon the agreement of the parties. At the same hearing, in 12 CR 2575, Fulton entered a no contest plea to interference with a law enforcement officer. Under the plea agreement, the State recommended that the interference charge be served on probation concurrent with probation in this case.
In March 2013, the State moved to revoke Fulton's probation in both cases due to the commission of a new crime. The revocation hearing was continued and then voluntarily dismissed without prejudice because the complaining witness could not be found to serve with a subpoena. On September 13, 2013, after Fulton had entered a plea to domestic battery, the State refiled its motion to revoke probation.
At the revocation hearing, Fulton stipulated to violating a condition of his probation— i.e., compliance with federal and state law. The court revoked Fulton's probation and imposed the original underlying sentence of 13 months in prison.
Fulton has filed a timely notice of appeal from the revocation of his probation and has moved for summary disposition of this appeal without briefing under Kansas Supreme Court Rule 7.041A (2013 Kan. Ct. R. Annot. 63). The State filed a response generally agreeing that summary disposition of the appeal was appropriate.
Fulton challenges the disposition of the probation revocation proceedings. Once the State has either established a violation of the conditions of probation to a preponderance of the evidence or, as here, the defendant has admitted the violation, the sentencing disposition, i.e., revocation or reinstatement of probation, rests within the broad discretion of the trial court. See State v.. Skolaut, 286 Kan. 219, 227–28, 182 P.3d 1231 (2008). Judicial discretion is abused when the court exercises its authority within the wrong legal framework, relies on a factual basis that is unsupported by the appellate record, or makes an otherwise arbitrary, fanciful, or unreasonable decision that any reasonable person in the position of the court would have rejected. See State v. Ward, 292 Kan. 541,550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012); State v. Gary, 282 Kan. 232, 235, 144 P.3d 634 (2006). Fulton bears the burden of demonstrating an abuse of discretion on appeal. See State v. Wells, 289 Kan. 1219, 1226, 221 P.3d 561 (2009).
As Fulton notes in his motion for summary disposition, a court's discretion to impose a prison sanction for a probation violation is sometimes restricted, requiring the court to first impose intermediate sanctions. See K.S.A.2013 Supp. 22–3716(c)(1)(B), (C), and (D). But these restrictions do not apply when the commission of a new felony or misdemeanor is the basis for the probation revocation. See K.S.A.2013 Supp. 22–3716(c)(8). Fulton does not suggest that the revocation of his probation exceeded the trial court's statutory authority in any other respect.
After being placed on probation in this case, Fulton failed to attend his probation meetings as scheduled, which resulted in a probation revocation proceeding. Fulton had also provided false information to a law enforcement officer, leading to a conviction for interference with a law enforcement officer. At the revocation hearing, the trial court emphasized the importance of complying strictly with the probation requirements, specifically the reporting requirement. Nevertheless, shortly after his probation was reinstated, Fulton committed a domestic battery, which was ultimately the basis for the probation revocation and imposition of the underlying prison term. Under these circumstances, we cannot conclude that no other judge considering the probation disposition in this matter would take the view adopted by the trial court. The trial court's decision to revoke Fulton's probation and impose the underlying prison sentence was not an abuse of judicial discretion.
Affirmed.