Opinion
112,303.
04-10-2015
STATE of Kansas, Appellee, v. Allison Brooke PILGRIM, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Allison Pilgrim appeals the district court's decision revoking her probation and ordering her to serve her underlying sentences in three separate cases. We granted Pilgrim's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 66). The State filed a response and requested that the district court's judgment be affirmed.
In 10CR987, Pilgrim was convicted of one count of felony theft. In 08CR1348 and 09CR114, Pilgrim was convicted of misdemeanor offenses. In 10CR987, the district court sentenced Pilgrim to an underlying term of 12 months' imprisonment and ordered the sentence to be served consecutive to the sentences in 08CR1348 and 09CR114. Pilgrim did not timely appeal her sentences.
Pilgrim stipulated to violating the conditions of her probation in all three cases. She also conceded that prior violations had been subject to intermediate sanctions. Pilgrim requested reinstatement to probation, but the district court denied her request and ordered that she serve her underlying prison sentences. Pilgrim timely appealed the probation revocation.
On appeal, Pilgrim argues that the district court erred by revoking her probation and ordering her to serve the underlying prison sentences. Pilgrim acknowledges that the decision to revoke probation rests within the sound discretion of the district court.
Probation from service of a sentence is an act of grace by the sentencing judge and, 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, 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 (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is 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 party asserting the district court abused its discretion bears the burden of showing such abuse of discretion. State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).
Pilgrim received multiple chances at probation in three separate cases. In revoking probation, the district court noted that Pilgrim had made a number of “bad choices” and that she was unable to comply with the terms of her probation. Based on the record, the district court's decision to revoke Pilgrim's probation was not arbitrary, fanciful, or unreasonable, and the decision was not based on an error of law or fact. See Ward, 292 Kan. at 550. Thus, we conclude the district court did not abuse its discretion in revoking Pilgrim's probation and ordering her to serve her underlying prison sentences.
Pilgrim also contends the district court violated her constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by basing her underlying felony sentence on a criminal history that was not charged in the complaint and proven to a jury beyond a reasonable doubt. However, Pilgrim did not timely appeal her felony sentence which was imposed on September 1, 2011. See K.S.A.2014 Supp. 22–3608(c) ; State v. Inkelaar, 38 Kan.App.2d 312, 317–18, 164 P.3d 844 (2007) (defendant's notice of appeal was timely only as to probation revocation and not as to original sentence), rev. denied 286 Kan. 1183 (2008). Because Pilgrim did not timely appeal her sentence, this court lacks jurisdiction to consider her Apprendi claim.
Affirmed in part and dismissed in part.