Opinion
No. 109045.
2013-07-5
STATE of Kansas, Appellee, v. Eddie James MOORE, Appellant.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge.
Submitted by the parties for summary disposition pursuant to K.S.A.2012 Supp. 21–6820(g) and (h).
Before MALONE, C.J., LEBEN and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
LEBEN, J.
Eddie James Moore received probation following his conviction for aggravated indecent solicitation of a child. Moore violated several of his probation conditions—most significantly by having contact with minors, including the victim, and failing to complete sex-offender treatment. The judge revoked Moore's probation and ordered him to serve his original 120–month prison sentence.
Moore appeals. But it's within the court's discretion whether to revoke probation once a violation has been established. On the facts of this case, we find no abuse of discretion in revoking Moore's probation.
Factual and Procedural Background
In January 2008, Moore was charged with aggravated indecent liberties with a child. The victim was an 8–year–old girl; Moore had two children with the girl's mother and was living with the family at the time. Moore pled no contest to a lesser charge of aggravated indecent solicitation of a child. Moore was presumptive for a prison sentence, but as part of the plea agreement, the State agreed not to oppose Moore's request for a dispositional departure to probation instead.
At the sentencing hearing in January 2010, Moore's attorney argued in favor of probation, emphasizing Moore's good employment history and his lack of problems with drugs or alcohol. Moore's attorney also pointed out that a psychiatric evaluation done during the plea negotiations—a copy of which was given to the judge—stated that the doctor did not believe Moore was a threat to the community. As outlined in the plea agreement, the State did not oppose Moore's request for probation.
Moore was granted a departure sentence and given 36 months of probation, with an underlying prison sentence of 120 months. Moore's probation conditions included registering as a sex offender, reporting to the court-services officer, having no unsupervised contact with minors, completing a sex-offender program and following all recommendations, having no contact with the victim, and avoiding places that could be of harmful character.
In June 2010, the State filed a motion to revoke Moore's probation, alleging that Moore had failed to comply with sex-offender treatment. In addition, Moore had had contact with the victim, allegedly threatening to “kill her, her mother ..., and her brother by setting the house on fire.” Moore responded that he went to the victim's house to drop off child-support payments for the children he had with the victim's mother.
A probation-revocation hearing was held in September 2010. The State requested that Moore be required to serve 30 days of “shock time” and then continue on probation. Moore joined in the recommendation, admitting that he had had contact with the victim while paying child support. Moore also requested work release during the shock time in order to maintain his employment. The district court accepted the joint recommendation, giving Moore 30 days of shock time and allowing him to continue on probation.
In June 2012, the State again filed a motion for probation revocation, alleging that Moore had yet to complete sex-offender treatment. Moore's intensive-supervision officer reported that Moore was making little progress, was engaging in high-risk behaviors, and was not a good candidate for community-based treatment based on the program's assessment. The motion also alleged that Moore was living with his uncle, whose 7–year–old daughter would stay overnight in the home. Last, the motion alleged that Moore regularly purchased alcohol for others—contrary to recommendations by his supervising officer and treatment program—in violation of the probation condition to avoid potentially harmful places.
At a probation-revocation hearing the following month, Moore admitted to the violations. Moore's attorney asked the court to continue the revocation hearing for 30–45 days so that he could investigate alternative treatment for Moore, expressing confidence that he could place Moore in another program. Moore's attorney emphasized that Moore had continued to maintain employment and did not drink or use drugs. But the State asked the court to revoke Moore's probation, arguing that Moore had significant violations, including staying in a house where a child was spending the night. The State also pointed out that Moore had not shown he could make progress in sex-offender treatment and had admitted to purchasing alcohol. The State emphasized that this was not Moore's first sex offense—he had a previous conviction for attempted aggravated criminal sodomy.
The district court denied Moore's request for a continuance, revoked Moore's probation, and ordered him to serve his original sentence. The court found that Moore had violated his probation in significant ways, had not responded to the 30 days of shock time, and had repeatedly shown that he could not successfully complete his probation.
Moore's Appeal
On appeal, Moore argues that he should have been given an opportunity to enter an alternative treatment program. The State counters that Moore's violations were “extremely significant” and the district court did not abuse its discretion in revoking Moore's probation.
The legal rules applicable to this appeal are straightforward. 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); see State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). Unless the district court has made a legal or factual error, we may find an abuse of discretion only when no reasonable person would agree with the decision made by the district court. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012); State v. Gumfory, 281 Kan. 1168, Syl. ¶ 1, 135 P.3d 1191 (2006).
We find nothing unreasonable about the district court's decision to revoke Moore's probation. After several serious violations—including having contact with the victim—Moore was given a second chance at probation and was still unable to comply with his probation conditions. In addition, Moore had a prior sex-offense conviction and was originally presumptive for prison, so the district judge gave Moore a break by assigning him to probation in the first place.
On Moore's motion, we accepted this appeal for summary disposition under K.S.A.2012 Supp. 21–6820(g) and (h) and Supreme Court Rule 7.041A (2012 Kan. Ct. R. Annot. 62). We have reviewed the record that was available to the sentencing court, and we find no error in its decision to revoke Moore's probation.
The judgment of the district court is therefore affirmed.