Opinion
No. 111,322.
2014-10-31
STATE of Kansas, Appellee, v. Codee A. MICHEAUX, Appellant.
Appeal from Sedgwick District Court; Bruce C. Brown, Judge.Submitted for summary disposition pursuant to K.S.A.2013 Supp. 21–6820(g) and (h).
Appeal from Sedgwick District Court; Bruce C. Brown, Judge.
Submitted for summary disposition pursuant to K.S.A.2013 Supp. 21–6820(g) and (h). Before MALONE, C.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Codee A. Micheaux appeals the district court's decision revoking his probation and ordering him to serve his underlying prison sentence. We granted Micheaux's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2013 Kan. Ct. R. Annot. 63). The State filed a response and requested that the district court's judgment be affirmed.
On July 22, 2010, Micheaux pled guilty to two counts of violating the Offender Registration Act. See K.S.A. 22–4901 et. seq. On September 2, 2010, the district court sentenced Micheaux to 52 months' imprisonment but granted probation with community corrections for 36 months. Micheaux subsequently violated the conditions of his probation on two separate occasions, once by failing to attend drug and alcohol treatment and once by failing to refrain from possessing contraband while at the community corrections residential facility. On each of the first two violations, the district court revoked and reinstated Micheaux's probation.
On April 12, 2012, a warrant was issued alleging that Micheaux once again violated the conditions of his probation by signing out of the community corrections residential facility and not returning as directed. This led to a separate charge being filed against Micheaux for aggravated escape from custody, and Micheaux pled guilty to this charge on September 13, 2012. The record reflects that the district court ordered a presentence investigation to be conducted at the Department of Corrections' Larned facility in order to address Micheaux's claimed mental health issues.
At the probation revocation hearing on March 12, 2013, Micheaux argued that he recently had been diagnosed as having bipolar I disorder, alcohol and cannabis dependence, and an antisocial personality disorder. Micheaux argued that prior to his diagnosis, he was suffering from delusions and hallucinations that led him to flee the residential community corrections facility. Micheaux contended that he would be better off on supervised probation so that he could seek mental health treatment and advance his education. The State argued that Micheaux's probation should be revoked and he should be ordered to serve the balance of his sentence.
After hearing the arguments from counsel, the district court revoked Micheaux's probation and ordered that he serve the balance of his sentence. The district court reasoned that this was Micheaux's third probation violation and he had failed to take advantage of educational and substance abuse programs available to him while on probation. The district court acknowledged that Micheaux's mental health condition was newly diagnosed but advised that he could seek treatment while incarcerated.
On appeal, Micheaux contends that the district court abused its discretion by revoking his probation and ordering him to serve his underlying sentence. The State responds that the district court was well within its discretion when it revoked Micheaux's probation and ordered him to serve his underlying presumptive sentence.
Probation from service of a sentence is an act of grace by the sentencing judge and, unless otherwise required by law, is granted as a privilege, not as a matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). 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). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is 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).
Here, Micheaux pled guilty to one count of aggravated escape from custody—a new criminal conviction in violation of the conditions of his probation. The new conviction constituted Micheaux's third probation violation. The district court was aware of Micheaux's substance abuse and mental health issues but noted that Micheaux had failed to take advantage of programs available to him while on probation. The district court's decision to revoke Micheaux's probation was not arbitrary, fanciful, or unreasonable, and the decision was not based on an error of law or fact. See Ward, 292 Kan. at 550. Thus, we conclude the district court did not abuse its discretion in revoking Micheaux's probation and ordering him to serve his underlying prison sentence.
Affirmed.