Opinion
No. 105,998.
2012-05-11
STATE of Kansas, Appellee, v. Donne Lee RODRIGUEZ, Appellant.
Appeal from Finney District Court; Phillip C. Vieux, Judge. Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Seth A. Lowry, assistant county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Finney District Court; Phillip C. Vieux, Judge.
Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Seth A. Lowry, assistant county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Donnie Lee Rodriguez appeals the district court's revocation of his probation, arguing that the district court had no jurisdiction to revoke his probation and, even if jurisdiction was proper, the district court abused its discretion because mitigating factors outweighed the need for revocation. We affirm the district court.
Factual and Procedural Background
On September 11, 2008, Rodriguez pled guilty to one count of aggravated indecent liberties with a child, in violation of K.S.A. 21–3504, a nondrug severity level 3 person felony. Rodriguez' criminal history score was B. On October 6, 2008, the district court denied Rodriguez' motion for durational departure and imposed the standard sentence of 216 months' imprisonment. The district court then granted Rodriguez a downward dispositional departure, ordering Rodriguez to attend Labette Conservation Camp, placing him on probation for 36 months with Community Corrections, and ordering postrelease supervision of 36 months.
On September 15, 2009, Carlos Murillo, Rodriguez' intensive supervision officer (ISO) with community corrections, filed a motion to revoke Rodriguez' probation. On January 7, 2010, the district court found that Rodriguez had violated his probation by consuming alcohol. The court then revoked and reinstated his probation with his original termination date of October 6, 2011.
In May 2010, Murillo filed two new motions seeking to revoke Rodriguez' probation. The district court held a hearing and found that Rodriguez had violated the terms of his probation, revoked his probation, and ordered him to serve his original sentence.
While the second probation revocation proceeding was pending, Rodriguez moved the district court to correct an illegal sentence, alleging that the district court did not have authority to order a 36–month probationary period, because the district court sentenced him to Labette under K.S.A. 21–4603d(a)(5) and he successfully completed 6 months at Labette followed by 6 months of adult intensive supervision. The district court denied Rodriguez' motion, finding that a sentence combining Labette with a term of probation was not illegal. Rodriguez appeals, essentially challenging this combination and seeking to be discharged or, in the alternative, to have his probation reinstated.
Did the District Court Have Jurisdiction to Revoke Rodriguez' Probation?
Rodriguez argues that the district court did not have jurisdiction to revoke his probation and to order him to serve his underlying sentence because the original probationary period imposed exceeded the legal length, which would have expired before his second probation revocation hearing. K.S.A. 22–3504(1) states that the court “may correct an illegal sentence at any time.” State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011). Additionally, the question of subject matter jurisdiction may be raised at any time, whether for the first time on appeal or even on the appellate court's own motion. State v. Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010).
Whether the district court has jurisdiction to revoke probation is a question of law over which this court's review is unlimited. State v. Cisneros, 36 Kan.App.2d 901, 902, 147 P.3d 880 (2006). This issue also involves statutory interpretation, a question of law subject to unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
“An illegal sentence, as contemplated by K.S.A. 22–3504(1), is a sentence imposed by a court without jurisdiction; a sentence that does not conform to the statutory provision, either in the character or the term of the punishment authorized; or a sentence that is ambiguous with respect to the time and manner in which it is to be served. [Citation omitted.]” State v. Gracey, 288 Kan. 252, 261, 200 P.3d 1275 (2009).
Rodriguez argues that the 36–month probationary period was illegal because, under K.S.A. 21–4603d(a)(5), a defendant's supervision term is limited to 6 months in Labette followed by 6 months of follow-up supervision with community corrections, for a total of 12 months. Rodriguez argues, therefore, that his probationary period ended on October 6, 2009. Accordingly, because the motions to revoke his probation were not filed until May 2010, the district court did not have jurisdiction because the proceedings were not commenced within 30 days after the expiration of his probation. See K.S.A.2009 Supp. 22–3716(d); State v. Hoffman, 45 Kan.App.2d 272, Syl. ¶ 4, 246 P.3d 992 (2011).
The State argues that the district court properly imposed 36 months' probation under K.S.A. 21–4611(c), providing for a probation term of 36 months for a severity level 3 person felony, and then imposed assignment to Labette as a condition of probation under K.S.A. 21–4603d(a)(5). The State argues that the 6–month post-conservation camp follow-up supervision under K.S.A. 21–4603d is a different type of supervision than probation, and the legislature did not intend for the 6–month term to serve as a defendant's standard probation.
We conclude the district court properly imposed the 36–month term of probation under K.S.A. 21–4611(c), and then imposed conditions on probation under K.S.A. 21–4603d(a)(5). Our conclusion is based on the proper interplay between K.S.A. 21–4611(c) and K.S.A. 21–4603d(a)(5).
K.S.A. 21–4611(c) provides, in relevant part:
“(c) For all crimes committed on or after July 1, 1993, the duration of probation in felony cases sentenced for the following severity levels on the sentencing guidelines grid for nondrug crimes ... is as follows:
(1) For nondrug crimes the recommendation duration of probations is:
(A) Thirty-six months for crimes in crime severity levels 1 through 5.”
Rodriguez committed a severity level 3 person felony; therefore, under K.S.A. 21–4611(c)(1)(A), Rodriguez' presumptive term of probation was 36 months. See State v. Holt, 39 Kan.App.2d 741, 744, 186 P.3d 803 (2007). Rodriguez argues, however, in this case, K.S.A. 21–4611(c)(1)(A) does not apply, because the 36–month term conflicts with the 12–month maximum supervision term in K.S.A. 21–4603d(a)(5).
K.S.A. 21–4603d(a)(5) provides, in relevant part:
“(a) Whenever any person has been found guilty of a crime, the court may adjudge any of the following:
....
(5) assign the defendant to a conservation camp for a period not to exceed six months as a condition of probation followed by a six-month period of follow-up through adult intensive supervision by a community correctional services program, if the offender successfully completes the conservation program.” (Emphasis added.)
Rodriguez seems to confuse the statutory bounds for the duration of his probation with the permissible conditions during that term. Here, K.S.A. 21–4611 sets out the maximum term of probation, and as a condition of that probation, K.S.A. 21–4603a(d)(5) sets forth the maximum term for which a court can commit a defendant to a conservation camp and the maximum period of “follow-up through adult intensive supervision by a community correctional services program” if the offender successfully completes the camp.
This conclusion is supported by the statutory language contained in K.S.A. 21–4603a(d)(5), which specifically states that the court may “assign the defendant to a conservation camp for a period not to exceed six months as a condition of probation.” (Emphasis added.) Our appellate courts have consistently implemented the plain language of the statute, treating placement in Labette as a condition of probation. See State v. Jackson, 291 Kan. 34, 36, 238 P.3d 246 (2010) (“Assignment of a defendant to Labette Correctional Conservation Camp, for example, was a special condition of probation that had to be articulated at sentencing from the bench and could not be added as a condition in the journal entry.”); State v. Beatty, No. 102,725, 2010 WL 5490732, at *1 (Kan.App.2010) (unpublished opinion) (“The district court also ordered the defendant to enter and complete the Labette [Correctional] Conservation Camp program as a condition of his probation.”); State v. Griffith, 101,086 et al., 2009 WL 1591913, at *1 (Kan.App.2009) (unpublished opinion), rev. denied 289 Kan. 1282 (“[a]s a condition of probation, the district court required Belinda M. Griffith to complete a program at Labette Correctional Conservation Camp”).
Moreover, a panel of this court has also treated the “six-month period of follow-up through adult intensive supervision by a community correctional services program” as a condition of probation. See State v. Garcia, 31 Kan.App.2d 338, 342–43, 64 P.3d 465 (2003). As the State points out, probation and post-conservation camp follow-up supervision are not mutually exclusive sentencing alternatives because assignment to a conservation camp and participation in the follow-up intensive supervision program can only occur if the court first places the defendant on probation.
It is clear, therefore, that the district court in this case properly set out the 36–month term of probation and then imposed conditions on probation under K.S.A. 21–4603d(a)(5). There is no conflict between the statutes cited by Rodriguez because K.S.A. 21–4603d(a)(3) permits the court to place a defendant on probation, whereas K.S.A. 21–4603d(a)(5) contains permissible conditions on the defendant's probation. We have noted similar parallels in K.S.A. 21–4611. See, e.g., State v. Perry–Coutcher, 45 Kan.App.2d 911, 913, 254 P.3d 556 (2011); Holt, 39 Kan.App.2d at 744–45.
Did the District Court Abuse Its Discretion in Revoking Rodriguez' Probation?
Rodriguez alternatively contends the district court abused its discretion in revoking his probation. Rodriguez concedes that he violated his probation; he argues only that given the mitigating circumstances surrounding the violations, the district court abused its discretion.
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 trial court, then it cannot be said that the trial court abused its discretion. State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
Here, the district court pointed out that Rodriguez' probation had previously been revoked and reinstated. The court also enumerated the multiple probation violations currently before the court, all of which were supported by sufficient evidence: (1) failing to comply with registration, (2) failing to submit to drug and alcohol testing, (3) failing to report contact with a law enforcement officer, and (4) being convicted of failure to register.
After the evidentiary hearing, the court continued disposition of the case to permit a mental health evaluation of Rodriguez. At disposition, the court noted that it had received the mental health evaluation and it stated that Rodriguez refused to fully cooperate, did not fill out the necessary paperwork, and was less than honest with the evaluator.
Before announcing its decision to revoke Rodriguez' probation, the court noted:
“For the past eight years the defendant has either been on probation, in jail, or in a conservation camp. And absolutely nothing appears to get his attention to steer him away from the status of being a habitual criminal. We no longer have that in the law anymore, but it is still an apt description of this defendant.
“Nothing works, nothing. Every break has been given to this young man. Nothing, absolutely nothing, has worked.”
In light of the court's finding that Rodriguez violated the terms of his probation, and in the absence of any affirmative allegation of arbitrary judicial action, we conclude the district court did not abuse its discretion in revoking Rodriguez' probation.
Affirmed.