Opinion
112,745.
08-14-2015
STATE of Kansas, Appellee, v. Robert Lee JONES, Appellant.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant. Amy E. Norton, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.
Amy E. Norton, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., McANANY, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Robert Lee Jones appeals the district court's revocation of his probation and the order requiring him to serve his underlying sentence. Jones claims that the district court abused its discretion by not imposing a graduated sanction.
Pursuant to a plea agreement with the State, Jones pled guilty to drug possession. The district court sentenced him to 12 months' probation with an underlying 20–month prison term.
The following month, Jones stipulated to violating the terms of his probation. The district court imposed a 14–day sanction and warned Jones, “[I]f you come back and you violate again you really seriously run the risk of me revoking your probation, sending you back.”
Less than 2 months later, Jones again stipulated to violating his probation. The district court imposed a 30–day jail sanction and reinstated probation for 12 months.
Less than 3 months later, Jones was again cited for numerous probation violations. While on probation he had been charged with a new drug crime. At the hearing Jones stipulated to the violations, including his new drug crime. He requested probation and expressed a desire to participate in drug treatment programs available through community corrections. But it was disclosed at a reconvened hearing that Jones had an outstanding arrest warrant in Kentucky and he would be able to receive drug treatment only if he first took care of this warrant. The court denied Jones' request for probation and ordered him to serve his sentence, stating that Jones “is not eligible for drug treatment, mandatory drug treatment, due to criminal history and the third or subsequent conviction of felony possession.”
Jones appeals.
Jones argues that the district court abused its discretion in revoking his probation and imposing the underlying sentence without stating its reasons for rejecting a graduated sanction on the record. See K.S.A.2014 Supp. 22–3716(c)(8). According to Jones, “[w]ithout further explanation, the district court imposed the underlying [sentence].”
Jones also claims the court abused its discretion in revoking his probation and imposing his underlying prison sentence when drug treatment would have been available in the community if the court had first allowed him to deal with his Kentucky warrant. He argues that the court should have imposed a 120– or 180–day graduated sanction under K.S.A.2014 Supp. 22–3716(c)(1)(E) before sending him to prison.
We examine the district court's decision to revoke Jones' probation for any abuse of discretion. See State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). Abuse of discretion exists when judicial action is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). The district court has discretion to revoke probation, and we “will not disturb a discretionary decision unless no reasonable person would have taken the view adopted by the district court. [Citation omitted.]” State v. Gonzalez, 290 Kan. 747, 755, 234 P.3d 1 (2010). The burden rests on the party who asserts the abuse of discretion. State v. Burnett, 300 Kan. 419, 449, 329 P.3d 1169 (2014).
The district court has two considerations in a probation revocation hearing: (1) the factual question whether the probationer has violated a condition of the probation; and (2) the discretionary determination of whether the established violation warrants the revocation of probation. State v. Skolaut, 286 Kan. 219, 227, 182 P.3d 1231 (2008). Probation is a privilege and not a matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006).
K.S.A.2014 Supp. 22–3716(c)(1) provides intermediate sanctions for probation violations. But K.S.A.2014 Supp. 22–3716(c)(8) establishes that the court may revoke probation without imposing a graduated sanction if “the offender commits a new felony or misdemeanor or absconds from supervision while the offender is on probation.”
Here, Jones admitted that he committed a new felony while on probation. Under this circumstance, K.S.A.2014 Supp. 22–3716(c)(8) did not require the district court to state with particularity its reasons for revoking probation and not ordering an intermediate sanction. Because Jones was on probation, the only condition for revoking probation was the commission of a new felony.
This contrasts with K.S.A.2014 Supp. 22–3716(c)(9), which requires the court to set forth with particularity how the safety of the community or the welfare of the offender will not be served by an intermediate sanction rather than imposing the defendant's underlying prison sentence. We do not ignore the fact that the legislature included this requirement of specific findings in subsection (c)(9) of the statute and not in subsection (c)(8). “ ‘The inclusion of one thing implies the exclusion of another.’ “ State v. Moffit, 38 Kan.App.2d 414, 419, 166 P.3d 435 (2007) (citing In re Marriage of Killman, 264 Kan. 33, 42, 955 P.2d 1228 [1998] ).
Here, the court did not need to make any specific findings other than the uncontested finding that Jones committed a new felony while on probation.
Jones points out that under K.S.A.2014 Supp. 22–3616(c)(8), the court may revoke probation if the offender commits a new crime while on probation. He argues that the district court abused its discretion in revoking his probation in view of Jones' expressed desire for drug treatment and the availability of treatment in the community.
But the court considered Jones' history of drug abuse and previous opportunities for treatment. Jones was not eligible for treatment in the community until after his extradition to Kentucky, and this was his third conviction of felony possession. The court had warned Jones after his first violation that he ran the serious risk of having his probation revoked.
K.S.A.2014 Supp. 22–3716(c)(8) authorizes the district court to revoke probation if a new felony is committed. In this case, the district court noted Jones' numerous opportunities for treatment, the fact that this is his third probation violation, and that he had committed a new drug felony while on probation. There is no showing that a reasonable person would not have revoked Jones' probation under these circumstances. The district court did not abuse its discretion in ordering Jones to serve his sentence rather than imposing a graduated sanction.
Affirmed.