Opinion
Nos. 111,111 111,112.
2014-12-12
STATE of Kansas, Appellee, v. Stacy MORRIS, Appellant.
Appeal from Sedgwick District Court; David Kaufman, Judge.
Submitted for summary disposition pursuant to K.S.A.2013 Supp. 21–6820(g) and (h).
Before PIERRON, P.J., BRUNS and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Stacy Morris appeals the district court's decision to revoke his probation and impose his underlying sentences. We granted Morris' motion for summary disposition under Supreme Court Rule 7.041A (2013 Kan. Ct. R. Annot. 63). The State filed a response in which it requests that this court affirm the district court's decision. After reviewing the record and arguments presented, we affirm.
On September 4, 2012, Morris pled guilty to one count of fleeing or attempting to elude in Sedgwick County Case No. 12CR1923. Subsequently, on April 22, 2013, Morris pled guilty in Sedgwick County Case No. 12CR3193 to one count each of theft and fleeing or attempting to elude. On May 31, 2013, the district court sentenced Morris in both cases. In 12CR1923, Morris received a sentence of 12 months' probation with community corrections and an underlying 13–month prison sentence. In 12CR3193, Morris also received 12 months of probation, but Morris' total underlying prison sentence in this case was 20 months. The district court also ordered that Morris serve the sentence consecutively to his sentence in 12CR1923.
On September 30, 2013, the State filed probation violation warrants in both 12CR1923 and 12CR3193. The State alleged that Morris failed to provide proof of any payment on his court costs; obtain employment; successfully complete treatment and anger management as directed; and call or report for his office visit on September 11, 2013. In fact, his whereabouts were unknown at the time the State filed the warrants.
On November 13, 2013, the district court held a hearing on these alleged probation violations. Morris admitted to violating his probation, and the district court accepted his admission and determined that Morris violated his probation. Morris argued for the district court to reinstate probation. The State requested that Morris serve his sentences because Morris' actions showed he was not amenable to probation and was a risk to public safety. The district court decided to revoke Morris' probation and impose his original sentences. In doing so, the district court stated,
“I'm bypassing any sanctions short of incarceration in the Department of Corrections, finding that the safety of the members of the public will be jeopardized by continued probation, specifically the use of methamphetamine. He's a danger to the community. And in conjunction with the safety of the public, I find that Mr. Morris is not amenable to probation.”
The district court also noted that it originally intended to depart to a prison sentence in these cases but ultimately decided to go with the parties' plea agreement. In stating that probation did not work for Morris, the district court pointed out that two of Morris' prior criminal cases resulted in revocation of probation with a modified sentence.
The district court revoked Morris' probation in both cases and ordered him to serve his original sentences, with the sentence in 12CR3193 being served consecutive to 12CR1923's sentence. Morris timely filed notices of appeal in both cases, and before granting Morris' motion for summary disposition, we consolidated the cases for appeal.
On appeal, Morris argues that the district court abused its discretion by revoking his probation and ordering him to serve his underlying prison sentences. Morris admits, however, that a district court has discretion to revoke probation upon a showing that a defendant violated the terms of his probation. Moreover, he acknowledges that K.S.A.2013 Supp. 22–3716(c)(9) permits a district court to revoke probation without having previously imposed another sanction if the court makes a particularized finding that “ ‘the safety of members of the public will be jeopardized’ “ by that sanction.
Probation from a sentence is an act of grace by the sentencing judge and, unless otherwise required by law, the sentencing judge grants it 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 is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) 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).
The current version of K.S.A.2013 Supp. 22–3716, which the sentencing court properly applied because it was in effect at the time Morris committed his violations, requires that a sentencing court give a probationer an intermediate sanction—such as a few days in jail—before ordering that the probationer serve the underlying prison sentence. See K.S.A.2013 Supp. 22–3716(c)(l) (listing intermediate sanctions). Intermediate sanctions, however, are not required before sending the probationer to prison if the sentencing court finds that the safety of the public will be jeopardized if sanctions are imposed and sets forth its reasons with particularity. K.S.A.2013 Supp. 22–3716(c)(9). Here, the provisions of K.S.A.2013 Supp. 22–3716 requiring intermediate sanctions before ordering the defendant to serve the underlying prison term did not apply once the district court found that continued probation would jeopardize the safety of members of the public.
Accordingly, we find that the district court made the proper findings for its decision to order that Morris serve his prison sentences. The district court set forth with particularity its reasons for finding that continuing Morris on probation would jeopardize public safety. Moreover, the district court's decision to revoke probation was not arbitrary, fanciful, or unreasonable. It was not based on an error of fact or law.
We, therefore, affirm the district court's decision revoking Morris' probation and imposing his original sentences.
Affirmed.