Opinion
No. 108,515.
2013-07-19
STATE of Kansas, Appellee, v. Scott A. McCUNE (McGune), Appellant.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Submitted for summary disposition pursuant to K.S.A.2012 Supp. 21–6820(g) and (h).
Before BRUNS, P.J., McANANY and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Scott A. McCune appeals from the district court order revoking his probation in two separate cases and ordering him to serve his underlying prison sentences. McCune contends that his probation violations were the result of his drug addiction and a mental disorder. As such, he argues that the district court abused its discretion by sending him to prison. We disagree.
In January 2011, McCune agreed to plead guilty to five counts—criminal threat, theft after a prior conviction, misdemeanor battery, possession of marijuana, and possession of drug paraphernalia—in Case No. 10CR3092. In exchange for his plea, the State agreed to make certain sentencing recommendations. The district court accepted McCune's plea and adjudged him to be guilty of the charges. In February 2011, the court sentenced McCune to 12 months' probation with an underlying 11–month term of incarceration.
Approximately 2 months after this sentencing in Case No. 10CR3092, the State filed a warrant alleging that McCune had violated the terms of his probation by using marijuana and alcohol. At his probation hearing, McCune admitted the alleged violations of the terms of his probation. Although the district court revoked McCune's probation, it was reinstated with supervision to be performed by community corrections.
Subsequently, the State charged McCune with six additional drug and nondrug related charges in Case No. 11CR200. Shortly before trial, McCune agreed to plead guilty to amended charges of possession of marijuana after a prior conviction, misdemeanor possession of drug paraphernalia, driving while suspended, and a traffic infraction. Again, the State agreed to certain sentencing recommendations. The court accepted the plea and found McCune guilty of the amended charges. In November 2011, the district court granted McCune a dispositional departure, sentencing him to 12 months' probation with an underlying term of 32 months' incarceration.
In June 2012, the State again filed a motion to revoke McCune's probation. This time, the State alleged that McCune had tested positive for PCP, tested positive for marijuana, and admitted to using marijuana on another occasion. In addition, the State alleged McCune had performed less than 10 percent of the community service hours he was ordered to complete.
At his second revocation hearing, McCune did not contest the allegations that he had violated the terms of his probation. Rather, he sought to have his probation reinstated due to his long-term drug addiction and homelessness. McCune's probation officer, however, informed the district court of the extensive efforts she had made to help McCune—including counseling, inpatient drug treatment, and outpatient drug treatment—but he still failed to remain drug-free. Thus, the district court revoked McCune's probation and ordered McCune to serve his original sentences in both cases.
On appeal, McCune moved for summary disposition in lieu of briefing pursuant to K.S.A.2012 Supp. 21–6820(g) and (h) and Supreme Court Rule 7.041A (2012 Kan. Ct. R. Annot. 62). The State did not dispute McCune's request, but it filed a response asking this court to uphold the district court's decision. As such, we granted leave for this appeal to proceed without briefing.
It is undisputed that McCune violated the terms of his probation on several occasions. Although his probation officer worked diligently to help him, McCune failed to remain drug-free. We, therefore, conclude that the district court did not abuse its discretion in revoking McCune's probation and reinstating his underlying sentences. See State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006) (after violation proven, revocation of probation evaluated on appeal for abuse of discretion); State v. Carr, 274 Kan. 442, 451, 53 P.3d 843 (2002) (probation is a privilege and not a matter of right).
Affirmed.