Opinion
111,480.
10-24-2014
STATE of Kansas, Appellee, v. Tyler M. KIRKHART, Appellant.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant.
Before HILL, P.J., STEGALL, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Tyler Kirkhart appeals the district court's decision revoking his probation. We granted Kirkhart's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2013 Kan. Ct. R. Annot. 63).
In 2011, in two consolidated cases, Kirkhart pled guilty to one count each of possession of marijuana with intent to distribute, failure to affix a tax stamp, possession of drug paraphernalia with intent to distribute or manufacture, burglary, and theft. The district court sentenced Kirkhart to 24 months of probation with an underlying 29–month prison term. The underlying sentence consisted of Kirkhart's consecutive sentences for possession of marijuana with intent to distribute and for burglary, with all other sentences running concurrently.
In 2011, the State filed a warrant requesting Kirkhart's probation be revoked for violations of the terms of his probation. The district court revoked Kirkhart's probation but reinstated and extended his probation for 24 months. The State again filed for probation revocation in 2012 and again at the beginning of 2013. Both times the district court revoked Kirkhart's probation but reinstated and extended his probation.
On December 31, 2013, Kirkhart had yet another probation revocation hearing. Kirkhart stipulated to the violations of his probation. At this hearing, Kirkhart asked that his sentences be modified to all run concurrently. The district court refused this request and ordered Kirkhart to serve his original underlying 29–month sentence. Kirkhart appealed.
On appeal, Kirkhart contends the district court abused its discretion in refusing to modify his underlying sentence. Probation from service of a sentence is granted as a privilege, not as a matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). “Once there has been evidence of a violation of the conditions on which probation was granted, the decision to revoke probation rests in the sound discretion of the district court” State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). Judicial discretion is abused when no reasonable person would have taken the position taken by the trial court. 281 Kan. at 1170.
Once a probation violation has been established, K.S.A.2013 Supp. 22–3716(b) affords the district court discretion to revoke the probation and require the defendant to serve the original underlying sentence or a lesser sentence. However, K.S.A.2013 Supp. 21–6820(c)(l) prevents this court from reviewing “[a]ny sentence that is within the presumptive sentence for the crime.” While there is an exception to this rule, it is only applicable if the district court misstates the law, finding that it is without the authority to impose anything but the presumptive sentence. State v.. Cisneros, 42 Kan.App.2d 376, Syl. ¶ 5, 212 P.3d 246 (2009). Such is not the case here. Kirkhart does not contend that the district court failed to recognize its authority to impose a lesser sentence, and the record does not show that the district court lacked awareness of this. Because Kirkhart's sentence was within the presumptive range, we are without jurisdiction to review his sentence.
Upon review of the record, we find the district court did not abuse its discretion when it revoked Kirkhart's probation on the State's fourth request after repeated violations. Further, we are without jurisdiction to consider his claim that the district court erred in not running his sentences concurrently as he was correctly sentenced pursuant to the sentencing guidelines grid.
Affirmed in part and dismissed in part.