Opinion
No. 111,347.
2015-01-30
STATE of Kansas, Appellee, v. Jose HERRERA, Appellant.
Appeal from Ford District Court; E. Leigh Hood, Judge.Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.Natalie K. Randall, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Ford District Court; E. Leigh Hood, Judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Natalie K. Randall, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., PIERRON and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jose Herrera appeals the revocation of his probation and the district court's imposition of the underlying term of imprisonment. The Ford County District Court had granted Herrera a downward departure to probation after he pled no contest to aggravated indecent solicitation of a child in violation of K.S.A.2011 Supp. 21–5508(b)(1). We affirm the district court's order.
Factual and Procedural Background
Herrera was originally charged with two counts of off-grid, aggravated indecent liberties with a child. The State then charged Herrera with two misdemeanor drug charges from another incident. As a result of plea negotiations, the State dismissed the misdemeanor charges in exchange for Herrera's agreement to plead guilty or no contest to one count of aggravated indecent solicitation of a child.
The parties filed a written plea agreement which Herrera read and signed. Herrera agreed to “obtain a sex offender evaluation at his own expense. He shall make the results of the evaluation available to all parties. He shall follow any and all treatments that are recommended.” Both parties agreed to recommend a departure to probation, “[i]n the event that the evaluation indicates [Herrera] is amenable to probation.”
The presentence investigation report showed Herrera had a G criminal history score. Aggravated indecent solicitation of a child is a severity level 5 person felony. Given these factors, Herrera's presumptive sentence was 38 to 43 months' imprisonment.
At sentencing on June 10, 2013, Herrera's counsel advised the sex offender evaluation “scores Mr. Herrera as a low risk, low probability for recidivism.” The State agreed and joined in the motion for a dispositional departure to probation. The district court sentenced Herrera to the standard prison term of 41 months' imprisonment but suspended the sentence and placed Herrera on probation for 36 months.
The district court then discussed with Herrera the terms of his probation. Herrera was advised that “because this is a sex offense,” he would be supervised by the Community Corrections Office (CCO). The district court directed Herrera “to complete the sex offender treatment program that the [CCO] has available to it.” Herrera was also told to sign releases so the CCO could “communicate with any treatment provider.... Because we want to make sure that whatever they've recommended, we get you that treatment.” Herrera agreed.
The district court reiterated:
“So you will have to complete this sex offender treatment program, whether it's in-house through [CCO] or they farm it out to a different agency. You will have to successfully complete that. If there's any cost involved in that treatment that insurance doesn't pay, you will have to pay those costs.”
Once again, Herrera agreed with this special condition of probation. Herrera also initialed and signed a written list of “Additional Conditions of Probation for Sex Offenders.” This document stated in part that Herrera would: “Actively participate in treatment with a therapist approved by [CCO]. Active participation shall be defined by the therapist and the [intensive supervision officer] ISO. Defendant shall pay for the treatment.”
Almost 3 months later, on August 9, 2013, Sonja Channell, an ISO with the CCO, signed an affidavit stating that Herrera was “referred to start attending a sex offender group on 6–25–13, ... but has yet to attend a group as required.” On August 12, 2013, the State filed a motion to revoke probation. On September 27, 2013, Herrera appeared in court and denied the allegation. Herrera asked for a continuance, and “[b]ased on the serious nature of the offense,” the district court granted the motion.
An evidentiary hearing on the State's motion to revoke was held on October 17, 2013. Channell testified that Herrera had not attended any of the weekly offender treatment sessions from June 25, 2013, to August 9, 2013. Channell advised these sessions were held in Garden City and that Herrera had told her he lacked transportation from his home in Dodge City.
At the hearing, Herrera testified to the same effect, saying he had lacked transportation to attend the treatment sessions. Herrera also testified that he was unaware of the location of the sessions in Garden City. Additionally, he testified that he had not made the sessions a priority because he was trying to complete his community service. In the future, however, Herrera advised the district court that his girlfriend could now drive him to the sessions. At the conclusion of the evidence, Herrera's counsel asked the district court to not revoke Herrera's probation because he would now make the sex offender class a priority.
The district court revoked Herrera's probation and refused to reinstate it. According to the district judge:
“I gave you the opportunity to prove ... that you were a good risk for probation. You don't get to pick and choose necessarily when you want to start and complete various orders of probation. Your [ISO] gets to pick and choose. And I agree with her and I agree with the program that based on your crime of conviction, the priority should have been in your mind: I have got to go get this treatment done because if I don't this is going to get me in prison. But you chose to totally do something different for whatever your internal reasons were. That demonstrates to me that you aren't really the candidate that was presented in the motion to depart and that you're not a viable candidate for continued probation. Based on your crime of conviction, it also appears that because of just the crime of conviction, you are a danger to the community even if the evaluation indicates a low risk to reoffend.”
Herrera appeals the district court's ruling revoking his probation and imposing the underlying prison sentence.
Discussion
For his first issue on appeal, Herrera contends that “[t]he State did not establish that [he] had violated his probation.”
“To sustain an order revoking probation, the violation must be established by a preponderance of the evidence.” State v. Inkelaar, 38 Kan.App.2d 312, 315, 164 P.3d 844 (2007), rev. denied 286 Kan. 1183 (2008). “A preponderance of the evidence is established when the evidence demonstrates a fact is more probably true than not true.” 38 Kan.App.2d at 315.
Herrera asserts he “did not have a ride to get to the treatment.” If true, this assertion does not contradict the district court's finding of a violation. Herrera undertook to obtain treatment as a condition of probation, and the undisputed fact was that he did not make arrangements to attend the Garden City sessions.
Herrera also argues his ISO “had not told him where to go.” Herrera testified that when he attempted to gain information from Channell, “[s]he just dismissed me every time I had an appointment with her.” On the contrary, Channell testified to “an ongoing discussion” with Herrera about his treatment options and his failure to attend the sessions. The district court credited Channell's testimony, and we do not reweigh the evidence or pass on witness credibility. See State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).
Herrera also argues he “had not realized that there was a due date for him to attend the class; he thought he had 36 months (the probation term) to complete the classes.” The record shows, however, this special condition was not only to complete sex offender treatment, but to do so under the direction and supervision of the CCO. In this regard, Channell testified that she directed Herrera to attend sex offender treatment starting on June 25, 2013—a fact Herrera never directly contradicted. A preponderance of the evidence, therefore, supported the district court's finding that Herrera violated his probation.
Next, Herrera contends that despite the district court's finding of a probation violation, it should not have revoked his probation and imposed the underlying sentence. In support of his argument, Herrera notes this was his first violation and that he “told the court he would do the treatment.”
Kansas law provides: “After the State establishes a probation violation by a preponderance of the evidence, the decision to revoke probation is within the sound discretion of the district court.” State v. Grossman, 45 Kan.App.2d 420, Syl. ¶ 7, 248 P.3d 776 (2011).
The district court found, after considering the sworn testimony, that Herrera was not amenable to probation. The seriousness of the crime of conviction, Herrera's failure to obtain treatment, and his shifting rationales for the failure all supported the district court's conclusion. We conclude the district court acted within its sound discretion in revoking Herrera's probation and imposing the underlying, presumptive prison sentence.
Affirmed.