Opinion
No. 109,264.
2013-11-22
STATE of Kansas, Appellee, v. Michael D. HOUSTON, Jr., Appellant.
Appeal from Saline District Court; Richard D. Anderson, Judge.
Submitted for summary disposition under K.S.A.2012 Supp. 21–6820(g) and (h).
Before GREEN, P.J., PIERRON, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Michael D. Houston, Jr., appeals the trial court's revocation of his probation and order that he serve his underlying sentence. Finding that the trial court did not abuse its discretion in doing so, we affirm. Additionally, we dismiss as untimely Houston's challenge to the use of his criminal history score to calculate his sentence.
In December 2010, under a plea agreement, Houston pled no contest to and the trial court convicted him of aggravated assault with a deadly weapon, a severity level 7 person felony, and failure to have liability insurance, a class B nonperson misdemeanor. The court sentenced Houston to 24 months' probation with an underlying prison sentence of 13 months for the aggravated assault with a deadly weapon offense and fined him $300 for not having liability insurance. In addition, the court ordered Houston to pay costs and fees.
In June 2012, the State moved for an order to show cause why Houston's probation should not be revoked, alleging that Houston had failed to report for office visits as required. The trial court issued the requested order and scheduled a hearing for July 5, 2012. At the hearing, Houston stipulated that he had violated the terms of his probation by failing to report. The trial court revoked and reinstated probation, ordering Houston to serve 30 days in jail as a sanction for violating his probation and ordering an additional 60–day sanction which Houston could serve in 72–hour increments.
In October 2012, the State moved a second time for an order to show cause why Houston's probation should not be revoked, again alleging that Houston had failed to report. The trial court issued the order and held a hearing on November 21, 2012. Houston stipulated that he had failed to report, thereby violating the terms of his probation, but he asked the trial court to impose a sanction and allow him to complete his probation because he was close to finishing the term. Instead, the trial court revoked Houston's probation and ordered him to serve his original sentence. Houston appealed and moved for summary disposition of his sentencing appeal under Supreme Court Rule 7.041 A (2012 Kan. Ct. R. Annot. 62). The State responded, and this court granted the motion.
Houston first contends that the trial court abused its discretion when it revoked his probation and ordered him to serve his underlying prison sentence. “Probation from serving a sentence under Kansas law is generally considered ‘an act of grace by the sentencing judge and, unless otherwise required by law, is granted as a privilege and not as a matter of right.’ [Citation omitted.]” State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once the State has established a violation of probation conditions, the decision to revoke lies within the sound discretion of the trial court. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). A judge abuses his or her discretion when the judicial action is (1) arbitrary, fanciful, or unreasonable; (2) based upon an error of law; or (3) based upon an error of fact. State v. Stafford, 296 Kan. 25, 39–40, 290 P.3d 562 (2012).
Here, Houston admitted he had violated the terms of his probation. Moreover, the trial court had revoked and reinstated Houston's probation once prior to ordering him to serve his original sentence. In revoking Houston's probation and ordering him to serve his original sentence, the trial court was not arbitrary, fanciful, or unreasonable, nor did it base its decision upon an error of law or fact. Accordingly, the trial court did not abuse its discretion, and we affirm.
Houston also asserts that the use of his prior criminal history to calculate his sentence without first proving it beyond a reasonable doubt to a jury violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Houston's challenge is untimely, however, because it was not filed within 14 days after sentencing, as required under K.S.A.2012 Supp. 22–3608(c). See State v. Hannebohm, 48 Kan.App.2d 921, 924–25, 301 P.3d 340 (2013) (defendant's notice of appeal was timely as to his probation revocation but not his original sentence). We conclude that we have no jurisdiction to consider Houston's Apprendi claim. See 38 Kan.App.2d at 317–18. This issue is dismissed.
We also note that, as Houston acknowledges, State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), is clear precedent contrary to his argument. This court is duty bound to follow Kansas Supreme Court precedent unless there is some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (2012). Our Supreme Court has repeatedly followed Ivory. See, e.g., State v. Benson, 295 Kan. 1061, 1068, 287 P.3d 927 (2012). Accordingly, even were we to address this issue, Houston would not succeed.
Affirmed in part and dismissed in part.