Opinion
No. 108,009.
2013-03-8
STATE of Kansas, Appellee, v. Michael McKINNEY, Appellant.
Appeal from Sedgwick District Court; Douglas R. Roth, Judge.
Submitted for summary disposition pursuant to K.S.A.2012 Supp. 21–6820(g) and (h).
Before LEBEN, P.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Michael McKinney appeals from the revocation of his probation in two traffic cases and one felony drug case. In addition, McKinney presents an untimely challenge to the criminal history score used in calculating his felony sentence.
In May 2010, McKinney was convicted of various traffic violations—including driving as a habitual violator, driving under the influence, and refusing a preliminary breath test—in case Nos. 09TR6721 and 09TR13572. He thereafter was sentenced to concurrent terms of 1 year on probation with a 12–month underlying jail term.
While the traffic cases were pending, McKinney was charged with felony possession of marijuana with intent to distribute in case No. 10CR1217. In January 2011, McKinney ultimately pled guilty to one count of possession of marijuana, a severity level 4 drug felony. Based on McKinney's criminal history—which included a number of marijuana, drug paraphernalia, and traffic convictions—the court found McKinney's criminal history score was H. There was no objection to this score. McKinney was sentenced to 18 months' probation with mandatory drug treatment; the court also imposed an underlying prison sentence of 18 months.
Approximately 2 months after imposition of his felony sentence, McKinney was accused of violating his probation in all three cases after being discharged from his court-ordered drug and alcohol treatment due to lack of attendance. Because the basis for discharge was unclear, the warrant was eventually withdrawn and his probation was continued. At this time, however, the court expressed concerns about various reports showing McKinney had attendance problems during his treatment.
In November 2011, McKinney had a urinalysis test that was positive for alcohol. At a revocation hearing, McKinney stipulated to testing positive for alcohol. The court revoked and reinstated McKinney's probation; he was ordered to attend all drug treatment and Alcoholics Anonymous sessions unless he was given permission to miss in advance by his intensive supervision officer (ISO).
In January 2012, another probation revocation warrant was issued alleging McKinney had failed to attend full treatment sessions without permission of his ISO. Just a few weeks later, another warrant was filed after McKinney was caught driving when his driver's license was revoked. McKinney stipulated to these violations. At a separate hearing, McKinney's ISO and substance abuse counselor testified as to his violations. The counselor also reported that McKinney's attitude toward drug treatment was nonchalant and unenthusiastic. At the conclusion of the hearing, the court revoked McKinney's probation in all three cases, finding he had shown a pattern of not complying with treatment; the court ordered him to serve his underlying sentences concurrently. McKinney timely appealed.
On appeal, McKinney 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 filed a response asking this court to uphold the revocation order. This court granted leave to proceed without briefing.
McKinney admitted violating the terms of his probation on several occasions. Although he completed one part of the drug treatment program, his attendance was sporadic in aftercare meetings despite numerous warnings. Moreover, these facts must be considered in light of his long history of drug-and traffic-related offenses. Based on a thorough review of the record, we find the district court did not abuse its discretion in revoking McKinney's probation. 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 an act of grace and, unless otherwise required by law, is a privilege and not a matter of right).
McKinney also attempts to challenge his criminal history score as calculated with his felony sentence, claiming it was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). However, McKinney's notice of appeal was filed after his probation was revoked; this notice was filed more than 13 months after the original felony sentencing. Thus, the notice of appeal was not timely.
Whether jurisdiction exists is a question of law subject to unlimited appellate review. State v. Huff, 278 Kan. 214, 217, 92 P.3d 604 (2004). An appellate court has a duty to question jurisdiction on its own initiative. If the record shows that there is no jurisdiction for the appeal, the appeal must be dismissed. State v. Wendler, 280 Kan. 753, 755, 126 P.3d 1124 (2006). The right to appeal is purely statutory. Subject to certain exceptions, Kansas appellate courts have jurisdiction to consider an appeal only if the appeal is taken in the manner prescribed by statute. State v. Legero, 278 Kan. 109, Syl. ¶ 2, 91 P.3d 1216 (2004). In this case, McKinney failed to timely appeal from his original sentencing when his criminal history was determined; therefore, we lack jurisdiction to consider this challenge.
Even if this court had jurisdiction to consider a challenge to his criminal history score, McKinney concedes the Kansas Supreme Court decided this issue contrary to his position in State v. Ivory, 273 Kan. 44, 46–47, 41 P.3d 781 (2002). The Supreme Court continues to reaffirm its Ivory ruling. See State v. Bonner, 290 Kan. 290, 305, 227 P.3d 1 (2010). This court is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (2012). Thus, McKinney's challenge to his criminal history score must be rejected.
Affirmed in part and dismissed in part.