Opinion
No. 108,744.
2013-08-16
STATE of Kansas, Appellee, v. Charles K. PERRY, Jr., Appellant.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Submitted for summary disposition pursuant to K.S.A.2012 Supp. 21–6820.
Before BUSER, P.J., SCHROEDER, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Charles K. Perry, Jr., appeals the district court's decision revoking his probation and ordering that he serve his underlying sentence in case No. 11CR898. He also challenges the sentence imposed in case No. 12CR1357. We granted Perry's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2012 Kan. Ct. R. Annot. 62). The State agreed with Perry's motion for summary disposition. Perry admitted he violated the terms and conditions of his probation in 11CR898, and we find the district court did not abuse its discretion. We find the prison sentence imposed in 12CR1357 was a presumptive sentence, and thus we dismiss this portion of Perry's appeal for lack of jurisdiction. Finally, we find the use of Perry's criminal history to enhance his sentence was not unconstitutional. See State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). We affirm in part and dismiss in part.
Facts
The district court accepted Perry's guilty plea to criminal possession of a firearm in 11CR898 and, pursuant to the sentencing guidelines, placed him on probation for 18 months with an underlying prison term of 9 months. While still on probation in June 2012, Perry pled no contest to criminal threat in 12CR1357. As part of the plea agreement, the State agreed not to seek a prison sentence despite this crime being committed while Perry was on felony probation in 11CR898.
At the probation revocation hearing on August 14, 2012, Perry admitted to a majority of his alleged probation violations—that he failed to obey the law by committing a new offense and he failed to obtain a high school diploma or equivalent as directed. After finding Perry in violation of the terms and conditions of his probation, the district court revoked his probation. The district court then proceeded with sentencing for his new conviction, and the State requested the district court follow the plea agreement. Perry argued for probation in 12CR1357 by attacking the credibility of the victims and claiming he entered the plea in order to take advantage of the State's agreement. He also asserted he was a candidate for probation as his recent behavior and actions would support his placement on probation.
The district court found Perry committed the new offense and was not a candidate for probation. The judge stated, “You committed this crime and you are convicted of a crime committed while on probation for criminal possession of a firearm. Your criminal history indicates that you are, quite frankly, a violent individual.” In 12CR1357, the district court sentenced Perry to 11 months in prison to run consecutively with the remainder of his 9–month sentence in 11CR898.
Perry timely appeals the revocation of his probation in 11CR898 and the sentence imposed in 12CR1357.
Revocation and Sentencing Issues
On appeal, Perry contends the district court abused its discretion in revoking his probation because he presented mitigating factors that outweighed the violations of his probation in 11CR898. He further argues the district court abused its discretion in applying the special rule and sentencing him to prison in 12CR 1357 because the witnesses involved in that case were not credible. Perry also claims he pled because the State had agreed to not request the special sentencing rule be invoked by the district court. Finally, Perry objects to the use of his prior criminal history without putting it to a jury and proving it beyond a reasonable doubt, arguing this violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
We note probation from serving the sentence imposed by the sentencing judge, 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, revocation is within the sound discretion of the district court. State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). We will not find the district court abused its discretion unless we can say the court's action: (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. See State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012). We have reviewed the record on appeal and find Perry cannot establish an abuse of discretion here. Perry was convicted of a new crime while on probation, regardless of his attempts to minimize this fact.
The prison sentence imposed in 12CR1357 was a presumptive sentence. The district court had the authority to impose a prison sentence as Perry committed the new crime while on probation in 11CR898. See K.S.A.2010 Supp. 21–4603d(f)(1). Imposition of a prison sentence for the new crime did not constitute a departure. As such, Perry's prison sentence is a presumptive sentence. See State v. Dean, 273 Kan. 929, 935, 46 P.3d 1130 (2002). Accordingly, we dismiss this portion of Perry's appeal for lack of jurisdiction. See State v. Huerta, 291 Kan. 831, 835–37, 247 P.3d 1043 (2011) (reaffirming that K.S.A. 21–4721[c][1] eliminates appeals of presumptive sentences).
Finally, our Supreme Court has repeatedly rejected challenges to the use of prior criminal history in sentencing. See State v. Bonner, 290 Kan. 290, 305, 227 P.3d 1 (2010). We are duty-bound to follow this precedent absent any indication the court is departing from its position. State v. Morton, 38 Kan.App.2d 967, 978–79, 174 P.3d 904,rev. denied 286 Kan. 1184 (2008).
Affirmed in part and dismissed in part.