Opinion
No. 111,506.
2014-12-12
STATE of Kansas, Appellee, v. Eliza GARZA, Appellant.
Appeal from Ford District Court; Daniel L. Love, Judge.Derek W. Miller, of Miller Law Firm, LLC, of Liberal, for appellant.Jaskamal P. Dhillon, assistant county attorney, Natalie Randall, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Ford District Court; Daniel L. Love, Judge.
Derek W. Miller, of Miller Law Firm, LLC, of Liberal, for appellant. Jaskamal P. Dhillon, assistant county attorney, Natalie Randall, county attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BRUNS and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Eliza Garza appeals the revocation of her probation by the district court based on her admission she had been charged with one felony and one misdemeanor charge in Guymon, Oklahoma, and failed to pay her court costs. We find no abuse of discretion by the district court and affirm the revocation of Garza's probation.
Facts
In January 2013, Garza pled no contest to forgery. The district court sentenced her to 19 months' imprisonment and then placed her on 18 months' probation. The conditions of Garza's probation included that she “obey all federal and state laws, municipal and county ordinances” and pay the court costs ordered by the district court.
Several months later, the State moved to revoke Garza's probation. The affidavit underlying the motion alleged that Garza was arrested in Oklahoma for larceny of merchandise and she owed $7,780.80 in costs. The State also filed an amended affidavit and a second amended affidavit with more information about the new offenses in Guymon, Oklahoma, and her nonpayment of court costs.
At the probation revocation hearing, the district court explained to Garza that admitting to the allegations would waive her right to the evidentiary hearing. Garza admitted to the allegations contained in the second amended affidavit reflecting the criminal charges in Guymon, Oklahoma, and the nonpayment of her court costs with a balance owed of $7,780.80.
Garza admitted to the allegations freely, voluntarily, and without threats or coercion. Accordingly, the district court found that she violated the terms of her probation. During the disposition stage, Garza's attorney acknowledged the nonpayment of court costs, explaining:
“There's a substantial amount of restitution owed in this case and [Garza] has not been able to put enough money together to pay toward that. However, she did inform me that she has been able to borrow some money and could in the next day or two make a payment of $1,500.00 towards the restitution.”
Garza requested that her probation be reinstated to allow her an opportunity to pay off the unpaid court costs and restitution. The State, however, argued for revocation. After considering the arguments and record, including her extensive criminal history, the district court revoked Garza's probation and ordered her to serve her underlying sentence of 19 months' imprisonment. Garza timely appealed.
Analysis
Did the District Court Err in Finding That Garza Violated Her Probation by Committing a New Crime?
On appeal, Garza argues the district court erred in finding that she violated her probation by committing a new offense because she admitted only to being arrested and subject to a warrant in Oklahoma.
In order for the district court to revoke a defendant's probation, the State must first establish commission of the violation by a preponderance of the evidence. State v. Gumfory, 281 Kan. 1168, Syl. ¶ 1, 135 P.3d 1191 (2006). This burden “is established when the evidence demonstrates a fact is more probably true than not true.” State v. Inkelaar, 38 Kan.App.2d 312, 315, 164 P.3d 844 (2007), rev. denied 286 Kan. 1183 (2008). Appellate review of a factual determination is generally governed by the substantial evidence standard. 38 Kan.App.2d at 315. Substantial evidence is such legal and relevant evidence that a reasonable person might accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012).
In cases where the alleged probation violation is based on the defendant's commission of a new offense, a criminal conviction is not required before the district court may revoke that defendant's probation. Inkelaar, 38 Kan.App.2d at 315. In fact, the district court may revoke probation “based upon commission of another crime even if the defendant was never charged with the crime or was charged but later acquitted.” 38 Kan.App.2d at 315. Instead, the relevant question is whether the commission of the new offense is demonstrated by a preponderance of the evidence. See 38 Kan.App.2d at 315–17.
Here, Garza admitted to the second amended affidavit reflecting she had been arrested on new criminal charges from Guymon, Oklahoma, and she had not paid on her court costs. At the probation revocation hearing, Garza expressed a desire to go to Guymon to “go to those courts and try to fight ‘em because half of the things that is on there isn't true.” The State concedes that the affidavit and Garza's statements indicate that she admitted only to being charged with the offenses. But the State only needs to prove by a preponderance of the evidence the defendant violated the terms of his or her probation. Gumfory, 281 Kan. at 1170.
Preponderance of the evidence is a lower standard than the reasonable doubt standard required to sustain a criminal conviction. See State v. Gleason, 299 Kan. 1127, 1214, 329 P.3d 1102 (2014) (Biles, J. dissenting). The preponderance standard means the evidence shows a factual proposition—such as the existence of a probation violation—is more likely true than not true. Inkelaar, 38 Kan.App.2d at 315 (citing Ortega v. IBP, Inc., 255 Kan. 513, 527–28, 874 P.2d 1188 [1994] ). The State's affidavit included a sworn statement of a police officer who identified Garza on the videotape committing the crime and stated that Garza confirmed she was the person on the videotape. This evidence was sufficient to demonstrate it was more likely true than not true that Garza violated her probation by committing crimes in Guymon, Oklahoma.
However, even if the officer's sworn affidavit was not sufficient to satisfy the preponderance of the evidence standard, Garza admitted to the probation violation in open court after a thorough examination by the district court judge. Ordinarily, “ ‘[p]arties are bound to their stipulations ... and a trial court or appellate court must render judgment based on those stipulated facts. [Citation omitted.]’ “ State v. Bannon, 45 Kan.App.2d 1077, 1089, 257 P.3d 831 (2011) (quoting Double M Const. v. Kansas Corporation Comm'n, 288 Kan. 268, 269, 202 P.3d 7 [2009] ), rev. denied 293 Kan. 1108 (2012). Stipulations encompass any “argument, agreement, admission or concession made injudicial proceedings by the parties thereto or their attorneys. [Citation omitted.]” Bodle v. Balch, 185 Kan. 711, 714, 347 P.2d 378 (1959). Garza is therefore bound by her admission that she violated her probation when she was charged with a new felony and a misdemeanor crime while on probation and she had failed to pay her court costs in the amount of $7,780.80. Did the District Court Err in Revoking Garza's Probation for Failure to Pay Court Costs and Restitution?
Garza next argues that the district court erred in revoking her probation for failure to pay court costs with a current balance of $7,780.80 because it never inquired into her reasons for failing to pay.
Unless required by law, probation is a privilege and not a matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once there is evidence of a probation violation, revocation of that probation is in the sound discretion of the district court. State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). An abuse of discretion only occurs when a judicial action is arbitrary, fanciful, or unreasonable, based on an error of law, or based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
Here, the district court acted within its sound discretion to revoke Garza's probation based on the new felony and misdemeanor charges in Guymon, Oklahoma. Since the district court acted within its discretion to revoke her probation, her argument challenging her probation revocation for nonpayment of court costs becomes moot. As a general rule, an appellate court does not decide moot questions or render advisory opinions. The mootness doctrine is one of court policy, which recognizes that the court's role is to determine real controversies relative to the legal rights of persons and properties that are actually involved in the particular case properly brought before it and to adjudicate those rights so that the determination will be operative, final, and conclusive. State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012).
Conclusion
The district court's revocation of Garza's probation as a result of new felony and misdemeanor charges in Guymon, Oklahoma, was not an abuse of discretion. We find Garza's argument that the district court failed to inquire about her ability to pay court costs is moot, since the new criminal charges were sufficiently supported by a preponderance of the evidence to justify the revocation of her probation.
Affirmed.