Opinion
No. 107,040.
2012-07-27
STATE of Kansas, Appellee, v. Altia KEMNITZ, Appellant.
Appeal from Riley District Court; David L. Stutzman, Judge.
Submitted for summary disposition pursuant to K.S.A. 21–4721(g) and (h).
Before STANDRIDGE, P.J., MARQUARDT and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Altia Kemnitz appeals the district court's decision to revoke her probation and to order her to serve her underlying sentences. We granted Kemnitz' unopposed motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 60). Finding no error, we affirm the district court's decision.
On August 10, 2009, Kemnitz pled no contest to one count of possessing oxycodone. As a result of this plea, the State agreed to dismiss all remaining charges. On December 7, 2009, the district court sentenced Kemnitz to 18 months' probation with an underlying prison term of 15 months. Soon after sentencing, Kemnitz moved from Riley County to Shawnee County. Joel Manzanares, an Intensive Supervision Officer with Shawnee County, was assigned to “courtesy supervise” Kemnitz for Riley County. Manzanares met with Kemnitz on February 12, 2010. During this meeting, Kemnitz admitted to Manzanares that she used methamphetamine on or about February 6. On February 19, Kemnitz and Manzanares discussed treatment options and ultimately agreed that Kemnitz would report for treatment at New Dawn on February 22. Notwithstanding this agreement, Kemnitz did not report to New Dawn and did not attend a scheduled meeting with Manzanares on February 23.
Thereafter, Manzanares attempted to make contact with Kemnitz. He went to her house on February 25, but no one answered the door. He left his card at her residence asking her to call him, but he did not receive a call. On March 3, he sent a letter to her residence stating she needed to report no later than March 23 or he was sending her case to Riley County. He received no response to his letter nor did he receive the letter back.
Manzanares ultimately sent an affidavit to Riley County reporting Kemnitz' probation violations. According to his affidavit, Kemnitz violated several of her probation conditions: failing to remain drug free, to attend treatment, and to report to her intensive supervision officer. A Riley County bench warrant was issued on April 20, 2010, which noted Kemnitz' last known address as 1041 SW MacVicar, Topeka. On September 29, Kemnitz was picked up on the warrant and ordered to appear on October 20. She failed to appear. On October 25, a second bench warrant was issued, which this time noted Kemnitz' last known address as 920 SE Dupont, Tecumseh. Kemnitz ultimately was arrested on December 23, 2010, and ordered to appear on January 5, 2011.
Although she did appear for the January 5, 2011, hearing, it appears there was some confusion as to whether there was a hearing actually scheduled. Given this confusion, the hearing was rescheduled for February 28. Kemnitz did not appear for this hearing. A third bench warrant was issued reflecting the Tecumseh address.
On April 27, 2011, Kemnitz turned herself in and was arrested. She was ordered to appear in Riley County District Court on May 25. She did appear at this hearing, but it ultimately was continued to June 22 so that Manzanares could attend the hearing to testify. On June 22, 2011, the judge revoked Kemnitz' probation and ordered her to serve 12 months in prison. Kemnitz filed a notice of appeal.
On appeal, Kemnitz claims the district court abused its discretion when it revoked her probation. A district court's decision to revoke probation must be based on a factual finding that a condition of probation has been violated. Once a violation has been established, the decision to revoke probation is within the discretion of the district court. State v. Skolaut, 286 Kan. 219, 227–28, 182 P.3d 1231 (2008). 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 reasonable. 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. Kemnitz admitted the violations and failed to take seriously her obligations on probation. We simply cannot say the district court overstepped its discretion.
Affirmed.