Opinion
Nos. 106,483 106,484.
2012-05-11
STATE of Kansas, Appellee, v. Kemper L. QUARLES, Jr., Appellant.
Appeal from Sedgwick District Court; James R. Fleetwood Judge.
Submitted for summary disposition pursuant to K.S.A. 21–4721(g) and (h).
Before McANANY, P.J., ATCHESON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Kemper L. Quarles, Jr., appeals the Sedgwick County District Court's revocation of his probation and order he serve his underlying sentence. He also appeals the court's decision to deny his request for a downward departure sentence. We granted Quarles' motion for summary disposition under Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 60). Finding no error, we affirm the district court's revocation of probation. We dismiss the sentencing appeal for lack of jurisdiction.
On November 15, 2010, Quarles pled guilty to one count of marijuana possession, in violation of K.S.A.2010 Supp. 21–36a06(b)(3)(c)(2), and one count of fleeing or attempting to elude a police officer, in violation of K.S.A.2010 Supp. 8–1568(b)(l)(E). The district court accepted his plea and sentenced Quarles to 12 months of probation with an underlying 16–month prison sentence. The court told Quarles that, as a condition of his probation, he had to comply with all local, state, and federal laws.
Roughly 4 months later, however, the State alleged Quarles violated the terms of the probation. Quarles pled guilty to two of the alleged violations: possession of marijuana with a prior conviction, in violation of K.S.A.2010 Supp. 21–36a06(b)(3)(c)(2), and criminal possession of a firearm, in violation of K.S.A.2010 Supp. 21–4204(a)(4)(A).
The district court accepted the pleas and then held a joint hearing to sentence Quarles and determine whether to revoke his probation. The court determined Quarles' plea agreement evidenced he had violated his probation. Quarles asked the court to permit him to remain on probation, in part, so he could continue drug treatment and his collegiate studies. The court ultimately revoked Quarles' probation and ordered him to serve his underlying sentence, though it modified his original sentence from 16 to 10 months in prison.
The district court also sentenced Quarles to 28 months in prison for the crimes to which he pled guilty, and the court denied his request for a downward departure sentence. Quarles filed a timely notice of notice of appeal for both his probation revocation and new sentence. This court consolidated the appeals.
Quarles argues the district court erred in revoking his probation. He does not augment his assertion with a detailed argument.
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). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the district court, then it cannot be said that the district court abused its discretion. State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
In this case, Quarles clearly violated his probation, as evidenced by his plea of guilty to two felonies. As the State observed at the revocation hearing, Quarles essentially pled guilty to the same type of charges for which he initially received probation, therefore showing “he hadn't even learned his lesson from the first time that he was on probation.” The district court agreed, determining Quarles had not “made the kind of changes” it had expected.
Based on our review of the record, the district court's decision to revoke Quarles' probation was not arbitrary, fanciful, or unreasonable. Therefore, the court did not abuse its discretion by revoking his probation and ordering him to serve his underlying sentence.
Quarles argues the district court erred in denying his motion for a downward departure when it sentenced him to 28 months in prison, a presumptive sentence under the Kansas Sentencing Guidelines.
Interpretation of a sentencing statute is a question of law, and the standard of review is unlimited. State v. Jolly, 291 Kan. 842, 845–46, 249 P.3d 421 (2011). 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 trial 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). Moreover, when a trial court imposes a sentence within the presumptive guidelines for that crime, an appellate court lacks jurisdiction to consider an appeal even when the trial court denies a motion for departure. State v. Williams, 37 Kan.App.2d 404, 407–08, 153 P.3d 566 (2007).
In this case, the State correctly observes there is no statutory authority permitting appellate review of presumptive sentences, and therefore, this court lacks jurisdiction to consider whether the district court erred in denying Quarles' downward departure motion. Thus, his appeal on this issue fails for lack of jurisdiction.
Affirmed in part and dismissed in part.