Opinion
No. 108,383.
2013-08-29
STATE of Kansas, Appellee, v. Andrew M. GUINN, Appellant.
Appeal from Sedgwick District Court; Benjamin L. Burgess, Judge.
Submitted for summary disposition pursuant to K.S.A.2012 Supp. 21–6820(g) and (h).
Before MALONE, C.J., PIERRON and GREEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Andrew M. Guinn appeals the district court's decision revoking his probation and ordering him to serve his underlying sentence. We granted Guinn's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2012 Kan. Ct. R. Annot. 62). The State has filed no response.
On April 12, 2012, Guinn pled guilty to one count of an offender registration violation. On May 9, 2012, the district court sentenced Guinn to 41 months' imprisonment and granted a dispositional departure to probation with community corrections for 24 months. Guinn did not appeal his sentence.
On June 29, 2012, Guinn admitted to violating his probation by committing the crimes of filing a false police report, criminal damage to property, and resisting arrest. Guinn requested that the district court reinstate his probation, or in the alternative, modify his sentence, arguing that he had reported to his probation officer on a regular basis, had not used drugs, was not refusing mental health treatment but could not afford his medications, and had not been charged with a violent crime. The prosecutor pointed out that the plea negotiations called for Guinn to receive only “one shot” at probation. The district court refused to reinstate Guinn's probation or to modify his original sentence, and ordered him to serve the underlying sentence. Guinn timely appealed.
On appeal, Guinn claims the district court erred by revoking his probation and ordering him to serve his underlying sentence. Guinn contends that his mitigating circumstances sufficiently outweighed any violations of probation.
Probation from service of a sentence is an act of grace by the sentencing judge and, unless otherwise required by law, is granted as a privilege, not as a matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once the State has proven a violation of the conditions of probation, probation revocation is within the sound discretion of the district court. State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the district court, then it cannot be said that the district court abused its discretion. State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
Here, Guinn initially received a dispositional departure to probation. At the probation violation hearing, the district court noted that the parties had agreed at sentencing that Guinn was to receive only “one shot” at probation. Based on the record on appeal, the district court's decision to revoke Guinn's probation was not arbitrary, fanciful, or unreasonable. We conclude the district court did not abuse its discretion by revoking Guinn's probation and ordering him to serve his underlying sentence.
Guinn also claims the district court violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by using his prior criminal history to enhance his sentence. But Guinn failed to timely appeal his sentence within 14 days of the sentencing hearing. See K.S.A.2012 Supp. 22–3608(c). The right to appeal is entirely statutory and is not found in either the United States Constitution or the Kansas Constitution. Because the filing of a timely notice of appeal from a sentence is jurisdictional, Guinn's failure to do so deprives this court of jurisdiction to review his sentence. See Barr v. State, 287 Kan. 190, 193, 196 P.3d 357 (2008). Thus, we dismiss Guinn's untimely attempt to appeal his sentence.
Affirmed in part and dismissed in part.