Opinion
No. 106,923.
2012-06-8
STATE of Kansas, Appellee, v. Percy A. JACKSON, Appellant.
Appeal from Sedgwick District Court; Benjamin L. Burgess, Judge.
Submitted by the parties for summary disposition pursuant to K.S.A. 21–4721(g) and (h).
Before BUSER, P.J., ATCHESON, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Percy Jackson appeals the decision of the Sedgwick County District Court to revoke his probation and to require he serve his underlying sentence on a felony theft conviction. This court granted Jackson's motion for summary disposition pursuant to K.S.A. 21–4721(g) and (h) and Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 60) to which the State had consented. Finding no abuse of discretion in the district court's ruling, we affirm the revocation.
On December 13, 2010, Jackson pled no contest to one count of felony theft, in violation of K.S.A. 21–3701. Based on Jackson's lengthy criminal history, the presumptive sentence called for incarceration. But because Jackson's most serious offenses occurred decades earlier, the district court granted Jackson's request for a dispositional departure and placed him on probation for 12 months with an underlying sentence of 11 months. The district court cautioned Jackson that any probation violation likely would result in his going to prison.
On October 7, 2011, Jackson stipulated that he had not attended substance abuse counseling as required under the terms of his probation and had tested positive for alcohol and cocaine, also violations of his probation. Based on the stipulation, the district court found Jackson had violated his probation, revoked the probation, and ordered that he serve the underlying sentence on the felony theft. The district court noted that on June 1, 2011, Jackson had stipulated to probation violations based on driving while suspended and testing positive for cocaine use. At that time, the district court reinstated Jackson's probation on a “zero tolerance” basis.
Jackson acknowledged his substance abuse problems and asked the district court to again reinstate his probation. The district court declined that request finding that some people lack “the will and the fortitude” to confront drug and alcohol addiction outside a prison setting. Jackson submits the district court abused its discretion in refusing to reinstate his probation and the mitigating circumstances for reinstatement outweighed the reasons for revoking. We disagree.
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).
The district court's decision to revoke was plainly within the range of discretion afforded in these circumstances. Jackson admitted the violations and obviously had chronic substance abuse issues that he was unable to successfully address on probation. The district court properly found that the considerably more restrictive environment of prison might be the place in which Jackson would confront his addiction and, perhaps, overcome it.
Jackson also attempts to challenge his sentence on the felony theft arguing the district court improperly considered his criminal history. Jackson argues that under Apprendi v. New Jersey, 530 U .S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the use of his prior criminal history, without putting it to a jury and proving it beyond a reasonable doubt, violated his constitutional rights.
But Jackson's appeal on this issue is untimely because it was filed well after the 14–day window permitted under K.S.A.2010 Supp. 22–3608(c). See State v. Inkelaar, 38 Kan.App.2d 312, 317–18, 164 P.3d 844 (2007) (defendant's notice of appeal was timely only as to his probation revocation but not his original sentence), rev. denied 286 Kan. 1183 (2008). This court, therefore, does not have jurisdiction to consider Jackson's Apprendi claim. See 38 Kan.App.2d at 317–18.
Even if this court had jurisdiction to review the criminal history challenge, the Kansas Supreme Court has clearly decided the issue adversely to Jackson. See State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). This court must apply Kansas Supreme Court precedent unless there is some clear indication that court is retrenching from its stated position. State v. Singleton, 33 Kan.App.2d 478, 488, 104 P.3d 424 (2005). The Kansas Supreme Court has not departed from its position articulated in Ivory and continues to adhere to it. See State v. McCaslin, 291 Kan. 697, 731–32, 245 P.3d 1030 (2011) (refusing to overrule Ivory in case where the district court used the defendant's prior convictions to enhance his sentence without submitting those convictions to the jury for proof beyond a reasonable doubt). We are without jurisdiction to consider Jackson's sentencing argument and dismiss that challenge.
Affirmed in part and dismissed in part.