Opinion
110,995 110,996 110,997 110,998 110,999 111,000.
02-06-2015
STATE of Kansas, Appellee, v. Deborah JENKINS, Appellant.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant. Jeffery S. Adam, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.
Jeffery S. Adam, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., HILL and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
This is a consolidated appeal of six criminal cases brought by Deborah Jenkins. Basically, Jenkins complains that the court abused its discretion by revoking her probation and ordering her to serve a prison sentence instead of imposing graduated sanctions. Because Jenkins continued to commit crimes while she was on probation, we hold the district court did not abuse its discretion.
Jenkins has a long criminal history.
Jenkins has repeatedly broken the law in Saline County. This appeal pertains to Jenkins' criminal conduct in that county between 2008 and 2011.
In March 2008, the State charged Jenkins in case 08CR284 with 48 separate counts. Those charges included 32 counts of forgery and 16 counts of criminal use of a financial card. All the crimes occurred in December 2007. Jenkins' first appearance in this case was March 6, 2008.
A week later, it was alleged that Jenkins tendered a stolen, forged check at a Salina grocery store. When stopped by police, a search of her person and purse revealed a used syringe, a package with methamphetamine residue, and a switchblade knife. As a result of this arrest, the State charged Jenkins with possession of methamphetamine, possession of drug paraphernalia, criminal use of weapons, two counts of forgery, and attempted theft by deception (case 08CR302).
In July 2008, while the other two cases were still pending, Jenkins was pulled over by a police officer because of an outstanding arrest warrant. A search of Jenkins' purse disclosed another person's checkbook. Further investigation established that 20 checks were missing and a number of those checks had been forged and passed at local businesses. Videotape footage from one of the businesses showed Jenkins tendering the checks. When an officer attempted to arrest Jenkins after the investigation was complete, the officer saw Jenkins discard a syringe partially filled with methamphetamine and a baggie with methamphetamine residue. As a result, the State charged Jenkins in case 08CR879 with 1 count of possession of methamphetamine, 1 count of possession of drug paraphernalia, 27 counts of forgery, 13 counts of theft by deception, and 1 count of theft of services.
In November 2008, Jenkins reached a plea agreement with the State with respect to the three 2008 cases. She agreed to plead guilty to five counts of forgery and two counts of misdemeanor unlawful use of a credit card in 08CR284. Jenkins also agreed to plead guilty to one count of possession of methamphetamine in 08CR302 and five counts of forgery and two counts of misdemdanor theft in 08CR879. In exchange, the State agreed to recommend concurrent sentences within each case, but it would recommend that the court run the sentences in 08CR284 and 08CR879 consecutively. The State also agreed not to invoke the special rule involving crimes committed while on felony bond. Finally, the State agreed to dismiss the charges in 08CR818.
The court sentenced Jenkins in these cases on January 30, 2009. The court placed Jenkins on probation with community corrections for 18 months and imposed an underlying prison term of 28 months in 08CR284. In 08CR302, Jenkins was placed on probation with mandatory drug treatment under K.S.A. 21–4729. The court imposed an underlying prison sentence of 20 months to be served concurrent with 08CR284 and 08CR879. In 08CR879, the court placed Jenkins on 18 months' probation with an underlying prison sentence of 28 months; this sentence was ordered to run consecutive to the sentence in 08CR284.
Before the expiration of her probation in the 2008 cases, a variety of issues arose. In February 2010, Jenkins was ordered to serve two consecutive weekends in jail for violating her probation by possessing or consuming alcohol. In March 2010, Jenkins was arrested on charges of aggravated burglary and theft, and the State filed new charges against Jenkins in case 10CR235. The State also filed a motion to revoke her probation granted in the 2008 cases.
At about the same time, Jenkins was arrested for shoplifting. Because she had two prior convictions for theft, the State charged Jenkins with one count of felony theft in 10CR401. In October 2010, Jenkins was arrested for shoplifting again, and the State filed another felony theft charge against her in 10CR1232.
In May 2011, Jenkins entered into a plea agreement with the State with respect to her 2010 charges. Jenkins agreed to plead no contest to one count of residential burglary in 10CR235, guilty to one count of felony theft in 10CR401, and no contest to felony theft in 10CR1232.
Pending sentencing, Jenkins was sent to Valley Hope Treatment Center in June 2011 and was ordered to report to the Hazel Oxford House upon her discharge from the treatment center. She failed to do so, and the State filed an amended motion to revoke her probation because her whereabouts were unknown.
In August 2011, the court held a hearing for sentencing in the 2010 cases. In the same hearing, the court considered the State's motion to revoke Jenkins' probation in the 2008 cases. After hearing the arguments of counsel and Jenkins' statements, the court sentenced Jenkins to probation in the 2010 cases, with underlying prison sentences of 21 months for residential burglary (10CR235), 12 months for felony theft (10CR401), and 12 months for felony theft (10CR1232). The court ordered all sentences in the 2010 cases to run consecutive to each other and consecutive to the sentences in the 2008 cases. The court also reinstated Jenkins' probation in the 2008 cases and extended Jenkins' probation term for 24 months.
Approximately 20 months later, the State filed another motion to revoke Jenkins' probation. The State alleged Jenkins had been arrested again on drug-related charges. It alleged Jenkins also had failed to pay court fees imposed in her cases. Shortly thereafter, Jenkins was charged in case 13CR270 with possession of methamphetamine with intent to distribute, possession of drug paraphernalia, and lack of a drug tax stamp.
The court held the revocation hearing on August 1, 2013. During this hearing, Jenkins agreed to stipulate to the alleged violations, including violating the law; in exchange, the State agreed to dismiss the charges in 13CR270.
Prior to the disposition hearing; Jenkins filed a motion to modify her sentence if her probation was revoked by the court. The disposition hearing was held on August 30, 2013. During this hearing, several law enforcement officers testified that Jenkins provided significant and useful information with respect to various ongoing investigations. She also provided information resulting in the termination of a correctional officer in the jail for bringing in contraband. One of the officers testified that Jenkins reported to law enforcement that her daughter had been contacted and that Jenkins was concerned for her daughter's safety. Jenkins testified that she was concerned because some of the targets of the investigation had tried to give her older daughter a car.
After hearing the evidence, Jenkins' counsel requested a modification of Jenkins' sentence. When asked for specifics, counsel requested a reduction of the sentence by 50 percent. In addition, counsel asked the court to consider probation so Jenkins could return to drug treatment. The State recommended Jenkins be ordered to serve her entire sentence. Ultimately, the court revoked Jenkins' probation and ordered her to serve her original underlying sentences from all of the cases. The only modification the court made to the sentence was to order the 12–month sentence in 10CR1232 to run concurrent with the other cases. This resulted in a controlling term of 89 months, rather than the originally imposed 101 months. The court denied Jenkins' request for probation, finding that although her cooperation with law enforcement was commendable, it showed she was continuing with her criminal associations while she was on probation.
Jenkins is not eligible for graduated sanctions.
On appeal, Jenkins argues the district court erred in revoking her probation under K.S.A.2013 Supp. 22–3716(c) by not imposing graduated sanctions for her violations. In the alternative, Jenkins contends the district court abused its discretion in not reinstating her probation or not reducing her underlying sentence more significantly.
K.S.A.2013 Supp. 22–3716 provides for a use of graduated sanctions for most probation violators. See K.S.A.2013 Supp. 22–3716(c)(1)(B), (c)(1)(C), and (c)(1)(D). As Jenkins recognizes, however, other subsections of the statute create exceptions to the graduated sanctions requirements. One subsection provides:
“(8) If the offender commits a new felony or misdemeanor ... while the offender is on probation, assignment to a community correctional services program ... or nonprison sanction, the court may revoke the probation, assignment to a community correctional services program ... or nonprison sanction ... without having previously imposed a sanction pursuant to subsection (c)(1)(B), (c)(1)(C) or (c)(1)(D)” (Emphasis added.) K.S.A.2013 Supp. 22–3716(c)(8).
As part of the revocation proceedings, Jenkins specifically stipulated to violating her probation by committing a new crime and by failing to pay costs. This stipulation was made in exchange for the dismissal of the criminal case relating to the new felonies. Because of her admission she committed new crimes, K.S.A.2013 Supp. 22–3716(c)(8) does not require the district court to impose graduated sanctions. Accordingly, the district court did not err in failing to impose graduated sanctions.
We see no abuse of discretion.
Even though Jenkins does not dispute the court's discretionary authority to revoke her probation, she claims the district court erred by (1) not reinstating her probation; and (2) not reducing her underlying controlling sentence of 101 months by 50 percent.
K.S.A.2013 Supp. 22–3716(b)(3)(B) authorizes the district court revoking a defendant's probation to “require the defendant to service the sentence imposed, or any lesser sentence.” State v. McKnight, 292 Kan. 776, 780, 257 P.3d 339 (2011) (citing K.S.A. 22–3716 [b] before applicable amendment). The extent of such a reduction is within the court's discretion. 292 Kan. at 782, 257 P.3d 339.
In claiming the district court abused its discretion, Jenkins relies on her long history of drug abuse and her assistance to law enforcement after her latest arrest. However, the court gave Jenkins many opportunities to address her drug addiction. For example, in September 2008, the court ordered Jenkins to complete treatment at Mirror, Inc., in Newton. Likewise, in June 2011, the court ordered Jenkins to inpatient drug treatment and then to an aftercare program.
The district court was very lenient in handling Jenkins' repeated violations of the law. Jenkins repeatedly violated the law when she was on bond in 08CR284. When she was arrested in 2010 while she still was on probation, she again continued to commit other crimes while on bond in 10CR235 and probation in the 2008 cases.
Then, Jenkins was subsequently arrested for distribution of a stimulant, possession of a hallucinogenic drug, possession of drug paraphernalia, possession of paraphernalia to cultivate, and no tax stamp. Moreover, as the district court noted, Jenkins' ability to assist law enforcement in other investigations was due to her ongoing association with criminal activity while on probation.
Considering the number of Jenkins' convictions, her persistent criminal conduct while on bond and on probation, and her repeated failures after receiving drug treatment, the district court clearly did not abuse its discretion in revoking Jenkins' probation. Considering all of the circumstances, the court's refusal to reduce Jenkins' sentence more than 12 months was not unreasonable.
Affirmed.