Opinion
No. 108,750.
2013-07-12
STATE of Kansas, Appellee, v. James PALMER, Appellant.
Appeal from Douglas District Court; Michael J. Malone, Judge.
Submitted for summary disposition pursuant to K.S.A. 21–6820.
Before HILL, P.J., POWELL, J., and HEBERT, SJ.
MEMORANDUM OPINION
PER CURIAM.
James Palmer appeals the revocation of his probation, arguing that his circumstances and need for treatment sufficiently outweigh his probation violations. Palmer moved for summary disposition pursuant to Supreme Court Rule 7.041A (2012 Kan. Ct. R. Annot. 62), and we granted leave to proceed without briefing. Based upon a thorough review of the record, we affirm the district court's decision.
Palmer pled guilty to one count of criminal threat, and on October 28, 2011, the district court sentenced him to 12 months' probation with an underlying prison term of 7 months and 12 months' postrelease supervision. Approximately 6 months later, however, the State moved to revoke Palmer's probation based upon several violations, including convictions for domestic battery, battery, and endangering a child; failure to maintain full-time employment or student status; testing positive for marijuana on two separate occasions; nonpayment of court-ordered financial obligations; and neglecting to complete an anger management program or a mental health evaluation. Consequently, on May 3, 2012, the district court issued a bench warrant for Palmer's arrest.
On June 22, 2012, the district court held a probation revocation hearing. Palmer stipulated to his new convictions, but he contended that his health issues, including muscular dystrophy and bipolar disorder with schizoaffective disorder, excused the other alleged violations. After hearing the testimony of Susan Benkelman, a probation officer, and Linda Palmer, Palmer's adopted mother, the district court found that Palmer had violated his probation by failing to obey the law and neglecting to provide verification that he completed an anger management program and a mental health evaluation. The district court noted that there were “mitigating factors, if not absolute[ ] defenses” to Palmer's failure to maintain employment or pay his financial obligations, but the court deemed it unnecessary to make findings on the remaining allegations.
Palmer's counsel subsequently requested reinstatement of his probation—with or without the imposition of 30 days' shock time—because Palmer believed he could obtain treatment for his underlying health problems and, with the supervision of his adopted mother, cure his probation violations. The State opposed reinstatement, as Palmer could not cure his most serious violation, his “three new person misdemeanor convictions.” The district court opted to defer the disposition of Palmer's case to give community corrections the opportunity to visit with Palmer and “come up with something that hopefully will keep [him] out of trouble.”
Three weeks later, on July 12, 2012, the district court held the disposition hearing. Palmer's counsel acknowledged that Palmer “had some trouble in the jail,” community corrections had advised against probation, and Shawnee County was planning to issue a warrant for “violation of a PDA.” Because Palmer only had a couple of months remaining on his sentence, his counsel requested that he remain in the Douglas County Jail pending any legal action by Shawnee County. The State also requested revocation, and in support for its argument explained that the day after the revocation hearing Palmer “falsely report[ed] ... taking a lot of pills and then [told] folks at the jail he said that just so they would take the time and effort to rush him to the hospital.” The district judge revoked Palmer's probation, ordered him to serve his underlying sentence, and stated:
“Of course, placing someone, Mr. Palmer, on probation shouldn't be an act of futility. It's not a right that you have in the situation, and I don't understand why you continued your behavior while you were in custody.
“It's a dismal situation that you came up with. It spans a variety of lying, of manipulating, and being aggressive. I don't see any purpose in putting you back on probation, because you haven't indicated that you wanted to succeed.”
On appeal, Palmer contends that the district court erred in refusing to reinstate his probation because, given his health issues, “probation or shock time would have been the best means to rehabilitate [him].” Palmer also attempts to excuse his behavior while in custody by contending, as his counsel noted at the disposition hearing, his medication, Risperdal, may not have been working effectively, as his problems ceased after medical personnel increased his dosage.
Probation from serving a sentence is “ ‘an act of grace by the sentencing judge and, unless otherwise required by law, is granted as a privilege and not as a matter of right.’ [Citation omitted.]” State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once the State has proven a violation of the conditions of probation, revocation is within the sound discretion of the district court. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). A judicial action constitutes an abuse of discretion if it is arbitrary, fanciful, or unreasonable, i.e., no reasonable person would have taken the view adopted by the court; guided by an erroneous legal conclusion; or based upon an error of fact. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
We find that the district court did not abuse its discretion. Despite Palmer's “continued violations of the law,” which the district judge found “troublesome,” Palmer had the opportunity to avoid incarceration, but he squandered this opportunity by failing to behave appropriately in the jail during the pendency of the revocation proceedings. As the district court found, Palmer's inability to conduct himself as a peaceful and law-abiding citizen shows that he was not amenable to probation. Thus, the district court was well within its discretion in revoking Palmer's probation and ordering him to serve his underlying sentence.
Affirmed.