Opinion
Nos. 108,663 108,664.
2013-07-5
STATE of Kansas, Appellee, v. Larry Edward RAGSDALE, Jr., Appellant.
Appeal from Labette District Court; Robert J. Fleming, Judge.
Submitted for summary disposition pursuant to K.S.A.2012 Supp. 21–6820(g) and (h).
Before MALONE, C.J., LEBEN and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Larry Edward Ragsdale, Jr., appeals the district court's revocation of his probation in two district court cases, 06CR234 (the 2006 case) and 08CR59 (the 2008 case). This court consolidated the cases for purposes of appeal. We then granted Ragsdale's motion for summary disposition in lieu of briefs pursuant to Kansas Supreme Court Rule 7.041 A (2012 Kan. Ct. R. Annot. 62). Finding no error, we affirm the district court's revocation of Ragsdale's probation. In addition, we find Ragsdale's challenge to his sentences to be untimely and dismiss that portion of his appeal.
Factual and Procedural History
In January 2007, pursuant to a plea agreement in the 2006 case, Ragsdale pled no contest to and the district court found him guilty of one count of possession of marijuana with intent to sell. The district court sentenced Ragsdale to 18 months' probation with an underlying sentence of 44 months' imprisonment. Just over 5 weeks later, the State filed a motion to revoke Ragsdale's probation, alleging Ragsdale had violated the conditions of his probation. Ragsdale admitted that he had pled guilty to a disorderly conduct charge in municipal court and that he had failed a drug test. The district court revoked and reinstated Ragsdale's probation, also ordering him to serve 2 days in the county jail.
Almost a year later, the State filed a second motion to revoke Ragsdale's probation alleging that Ragsdale had two other criminal cases pending, had failed to make a payment on his court costs since December 2007, had failed multiple drug tests, and had been untruthful with his intensive supervision officer (ISO). Ragsdale entered into a plea agreement in which he agreed to stipulate to violating his probation in the 2006 case and to plead no contest to one count of felony possession of marijuana in the 2008 case in exchange for dismissal of the remaining counts and dismissal of all counts in a third criminal case, 08CR111.
The district court accepted Ragsdale's no-contest plea and found him guilty of felony possession of marijuana in the 2008 case and dismissed the remaining charges and case, as agreed. The court further found that the conviction in the 2008 case constituted a violation of Ragsdale's probation in the 2006 case. He was sentenced to 36 months' probation in the 2008 case, with an underlying sentence of 34 months' imprisonment, to run consecutively to his sentence in the 2006 case. The court ordered Ragsdale to remain in jail for 60 days or until he was accepted into inpatient drug treatment; upon successful completion of inpatient drug treatment, Ragsdale would begin his probation.
Approximately 2 years later, the State filed a motion to revoke Ragsdale's probation in both cases, alleging that he violated his probation by breaking the law, failing to obtain a drug and alcohol evaluation, consuming illegal drugs or alcohol, and possessing an illegal weapon or firearm. At the hearing on the motion, Ragsdale stipulated to violating his probation. After hearing testimony about the nature and extent of the violations, the district court revoked his probation and ordered Ragsdale to serve his underlying prison sentences. Ragsdale timely appeals both revocations.
Analysis
Although he concedes that he violated his probation, Ragsdale contends that the district court abused its discretion by revoking his probation and ordering him to serve his underlying prison sentences. Specifically, Ragsdale argues that the district court should have given him another chance to overcome his drug addiction while on probation and that its refusal to do so constituted an abuse of discretion.
“Probation from serving a sentence under Kansas law is generally considered ‘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 established a violation of probation conditions, the decision to revoke lies within the sound discretion of the district court. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). A judge abuses his or her discretion when judicial action is (1) arbitrary, fanciful, or unreasonable; (2) based upon an error of law; or (3) based upon an error of fact. See State v. Stafford, 296 Kan. 25, 39–40, 290 P.3d 562 (2012).
When sentencing Ragsdale to probation in the 2008 case, the district court explicitly warned Ragsdale of the consequences of violating his probation, stating: “This is your last chance. If you can't do everything I've just said, if you can't get into a drug treatment program, if you can't complete it, if you can't stay off the dope, you're going to go serve your six years plus in prison.” Later in the hearing, the judge reiterated that if Ragsdale did not comply with the probation requirements, he would have to serve the underlying prison sentences. Yet at his final probation revocation hearing, Ragsdale stipulated to violating his probation. Ragsdale's ISO testified that since entering probation on the 2008 case, Ragsdale had tested positive for drugs four times, had self-reported drug use another nine times, was on felony diversion for possession of marijuana in another county, and was facing a domestic battery charge in municipal court. The ISO further testified that she felt she had exhausted all the resources available to Ragsdale and that he was not diligently working on complying with the terms of his probation.
Based on our review of the record, the district court's decision to revoke Ragsdale's probation was not arbitrary, fanciful, or unreasonable. Accordingly, the district court did not abuse its discretion by revoking his probation and ordering him to serve his underlying sentences.
In addition, Ragsdale argues that the district court violated his rights under the Sixth Amendment to the United States Constitution when it increased his sentence based upon his prior criminal history. He cites Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in support. However, Ragsdale's appeal on this issue is untimely because it was not filed within 10 days after sentencing, as required under K.S.A. 22–3608(c). See also State v. Inkelaar, 38 Kan.App.2d 312, 317–18, 164 P.3d 844 (2007), rev. denied 286 Kan. 1183 (2008) (defendant's notice of appeal was timely only as to his probation revocation and not as to his original sentence). We conclude that we have no jurisdiction to consider Ragsdale's Apprendi claim. See 38 Kan.App.2d at 317–18. Accordingly, this issue on appeal is dismissed.
We also note, however, that Ragsdale concedes that the Kansas Supreme Court has already decided this issue against him. See State v. Ivory, 273 Kan. 44, 45–48, 41 P.3d 781 (2002). This court is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its earlier position, and there is no such indication on this issue. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied Kan. (May 4, 2012). Therefore, even if it were timely, Ragsdale's argument on this issue fails.
Affirmed in part and dismissed in part.