Opinion
No. 105,866.
2012-05-11
STATE of Kansas, Appellee, v. Johnny D. MOORE, Appellant.
Appeal from Sedgwick District Court; William Sioux Woolley, Judge. Carl F.A. Maughan, of Maughan & Maughan LC, of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; William Sioux Woolley, Judge.
Carl F.A. Maughan, of Maughan & Maughan LC, of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., STANDRIDGE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Johnny D. Moore appeals the district court's decision to revoke his probation as well as the district court's denial of his motion to modify his sentence. He contends that the district court failed to adequately consider his mental limitations in mitigation of his admitted violations of his probation. Because we find that the district court fully considered all the evidence presented and did not abuse its discretion in revoking Moore's probation, we affirm the court's decision. As to the denial of the motion to modify his sentence, we find we lack jurisdiction because Moore received a presumptive guidelines sentence.
Factual and Procedural History
Moore was charged with aggravated robbery. After a motion was filed to assess Moore's mental capacity to stand trial due to Moore's mental developmental disability, Moore was deemed competent to stand trial. He was diagnosed with mild mental retardation. Subsequently, Moore entered into a plea agreement in which he pleaded guilty to robbery in exchange for the State's assurance it would recommend probation. The district court accepted Moore's plea and found him guilty of robbery. He was sentenced to probation with an underlying 36–month prison term, which represented the midrange in the appropriate presumptive sentence border box under the Kansas Sentencing Guidelines.
Shortly after Moore's sentencing date, a warrant was filed alleging that Moore had violated his probation by missing his curfew and consuming alcohol. A probation revocation hearing was held and the district court revoked and reinstated Moore's probation.
Subsequently, two more warrants were filed alleging that Moore had failed to stop at a stop sign; he drove without a valid driver's license; he failed to meet the required community service hours; he was listed as a suspect in a robbery case; he associated with individuals who had a history of drug convictions, as well as additional pending cases; and he twice tested positive for drugs.
At the probation revocation hearing, Moore admitted to a majority of the probation violations. The district court revoked his probation and ordered him to serve his original sentence. Moore asked the district court to reduce his sentence. The district court denied the motion to modify.
Moore appeals the revocation of his probation and the denial of the motion to modify his sentence.
ANALYSIS
The probation revocation
When a defendant's probation is revoked, the appellate courts review a district court's decision for an abuse of discretion. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). An abuse of discretion occurs when the action is arbitrary, fanciful, or unreasonable. This abuse means no reasonable person would have taken the action of the district court. State v. Sellers, 292 Kan. 117, 124, 253 P.3d 20 (2011).
Moore asserts that the district court abused its discretion when it revoked his probation. Specifically, he contends that the district court should have considered his mental disability as a mitigating factor and should have made specific findings of facts and conclusions of law regarding the affect of Moore's mental disability on its decision.
In reviewing the evidence presented at the probation revocation hearing, it is undisputed that Moore admitted to violating his probation and Moore's probation had already been revoked and reinstated once before. In addition, contrary to Moore's assertions on appeal, the district court did consider his request for mitigation in light of his mental disability; it simply did not agree that Moore's disability was a factor in the violations. The district court held that despite Moore's mental limitations “given the nature of the crime, given the nature of the allegations the second time around, the Court finds that defendant's not amenable to probation and he is directed to serve his sentence.” Specifically in response to defense counsel's recitation of Moore's precise scores on intelligence assessments, the district judge stated:
“Well, again, I understand everything that you are saying, [defense counsel], and I listened to that carefully today, and I listened to it very carefully when we had the sentencing, so I am very aware of his limitations. And the circumstances that present him here today—and some of the requirements are not complicated. They are simple, and nothing that I have been presented today tells me that he doesn't and didn't and hasn't understood the simple requirements that are part of the probation violations that we had.”
Accordingly, based on Moore's admissions to the violations of his probation, the district court did not abuse its discretion when it revoked Moore's probation. Moore's motion to modify his sentence
Moore next argues that the district court abused its discretion when it refused to modify his sentence. Again, Moore contends that the district court neglected to take his mental disability into consideration. Although we have already found that the district court did adequately consider Moore's mental disability, we lack jurisdiction to consider this issue.
K.S.A. 21–4721(c) provides that an appellate court shall not review on appeal a sentence for a felony conviction that is (1) within the presumptive guidelines sentence for the crime or (2) the result of a plea agreement between the State and the defendant which the district court approved on the record. Where the imposed sentence is within the presumptive guidelines sentence, the appellate court lacks jurisdiction to consider the appeal. State v.. Johnson, 286 Kan. 824, 851–52, 190 P.3d 207 (2008). Moore's sentence fell within the presumptive guidelines and was the result of a plea agreement between the State and Moore which the district court approved on the record. Therefore, this court has no jurisdiction to hear this issue.
Affirmed in part and dismissed in part.