Opinion
No. 110,665.
2014-10-31
STATE of Kansas, Appellee, v. Kory GALL, Appellant.
Appeal from Reno District Court; Joseph L. McCarville III, judge.
Submitted by the parties for summary disposition pursuant to K.S.A.2013 Supp. 21–6820(g) and (h).
Before POWELL, P.J., LEBEN, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Kory Gall appeals his probation revocation. We granted Gall's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2013 Kan. Ct. R. Annot. 63). Because we conclude the district court did not abuse its discretion in revoking Gall's probation, and because we have no jurisdiction to address the other issues raised by Gall, we affirm in part and dismiss in part.
On June 20, 2012, Gall pled no contest to one charge of attempted robbery. The district court sentenced him to 13 months in prison but granted Gall 24 months' probation with community corrections. In roughly a year's time, Gall twice violated his probation conditions. First, in January 2013, Gall stipulated to violating the conditions of his probation by using marijuana and being discharged from inpatient mental health treatment. Second, at a hearing on July 31, 2013, the district court found Gall violated his probation by: (1) carrying a concealed weapon; (2) possessing a large knife, refusing to take medications and attend therapy, punching a door and window, and jumping a fence in an attempt to escape, all while being involuntarily committed to Larned State Hospital; (3) being out of placement overnight while at the Wichita Mental Health Association (MHA); (4) stealing a laptop from another resident at MHA; (5) taking extra pills against MHA staff's orders; (6) being discharged from MHA due to behavioral risks; and (7) leaving the Reno County Community Corrections office without permission. The court ordered Gall to serve the underlying prison sentence and recommended he serve his sentence at Larned State Hospital.
At some point after the probation revocation hearing, Gall objected to the calculation of his jail credit and requested he receive credit for the time he spent in inpatient treatment at two mental health facilities. On August 19, 2013, the district court held a hearing and denied Gall's request for additional jail credit. The probation revocation journal entry was filed on August 20, 2013, and Gall subsequently filed a notice of appeal on August 23, 2013.
On appeal, Gall argues the district court: (1) erred by revoking his probation and ordering him to serve his original sentence; (2) violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it used his criminal history score to increase his sentence without requiring it to be proved to a jury beyond a reasonable doubt; and (3) erred by including a prior juvenile adjudication for criminal history purposes.
First, we are unpersuaded by Gall's assertion of error as to the revocation of his probation. We review the district court's decision to revoke a defendant's probation under an abuse of discretion standard, which means that we may only overturn the district court's decision if it made a legal or factual error or if no reasonable person could agree with the court's action. See State v. Skolaut, 286 Kan. 219, 227–28, 182 P.3d 1231 (2008) (once probation violation established by preponderance of evidence, district court has discretion to revoke probation). Given the nature of Gall's offense, the fact he was given more than one opportunity to successfully complete probation, and the numerous serious violations found by the district court, all of which are amply supported in the record, we have no trouble in concluding the district court did not abuse its discretion in revoking Gall's probation.
Second, the last two issues involve his original sentence issued in August 2012. However, K.S.A.2012 Supp. 22–3608(c) provides that the defendant has only 14 days after the judgment of the district court to appeal, and Gall did not file a notice of appeal until August 23, 2013, roughly a year after imposition of his sentence. Since the right to appeal is entirely statutory, subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by law. State v. Gill, 287 Kan. 289, 293–94, 196 P.3d 369 (2008). Because Gall did not timely file his appeal on the two sentencing issues he raises, we do not have jurisdiction to consider them.
Finally, we note that while Gall's notice of appeal was timely filed as to the district court's order denying his request for additional jail credit, Gall waived his right to challenge this ruling by failing to raise the issue in his appeal. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013) (issue not briefed by appellant is deemed waived and abandoned).
The judgment of the district court revoking the defendant's probation is affirmed, and all remaining issues are dismissed.