Opinion
No. 106,915.
2012-06-15
STATE of Kansas, Appellee, v. Hubert Wayne SAWYER, Jr., Appellant.
Appeal from Linn District Court; Richard M. Smith, Judge.
Submitted by the parties for summary disposition pursuant to K.S.A. 21–4721(g) and (h).
Before GREEN, P.J., MALONE and MCANANY, JJ.
MEMORANDUM OPINION
PER CURIAM.
Hubert Wayne Sawyer, Jr., appeals the decision of the trial court revoking his probation and ordering him to serve his underlying sentence, and he also challenges his original sentence. We granted Sawyer's motion for summary disposition in lieu of briefs under Supreme Court Rule 7.041a. (2011 Kan. Ct. R. Annot. 60). Concluding that the trial court did not abuse its discretion in revoking Sawyer's probation, we affirm this aspect of his appeal. Moreover, concluding that we have no jurisdiction over Sawyer's challenge to his original sentence, we dismiss this aspect of his appeal.
Sawyer originally pled guilty to criminal threat, and on September 3, 2010, the trial court sentenced him to 12 months' probation, with an underlying 12–month prison sentence. At the sentencing hearing, the trial judge stated, “I will sentence the Defendant to the presumptive period of 12 months in the custody of the Department of Corrections, note that pursuant to his evaluation that he scored high risk, high needs or both.... Taking your medication's goin' [ sic ] to be really important. Making sure you've got transportation to get to the mental health center's goin' [ sic ] to be important.... You're goin' [ sic ] to end up in jail if you start drinkin' [ sic ] or don't take your meds.” Some conditions of Sawyer's probation were that he refrain from using alcohol and illegal drugs, that he obtain a drug and alcohol evaluation, that he continue his outpatient mental health treatment, and that he take his medications as prescribed.
On May 4, 2011, the State moved to revoke Sawyer's probation based on the following: (1) defendant admitted he has been driving his father's vehicle to the store and on other errands without a valid driver's license; (2) defendant has failed to seek employment since being placed on supervision in September 2010; (3) defendant has no source of income and therefore failed to make any payments towards his court case or the monthly supervision fees; (4) defendant admitted to consuming a beer; (5) defendant has not undergone a drug or alcohol evaluation since being placed on probation; (6) defendant struggles maintaining his medication. The defendant admitted that he has not been taking his medication because it conflicted with his reporting schedule.
A probation revocation hearing was held on June 1, 2011. After hearing the evidence, the trial court revoked Sawyer's probation and ordered Sawyer to serve his original sentence.
Sawyer suggests that the revocation of his probation was an abuse of discretion, but his motion for summary disposition does not make any specific allegations of arbitrary judicial action or other support for his conclusory allegation.
Once the State has established a violation of probation conditions, the decision to revoke lies within the sound discretion of the trial court. State v. Gumfory, 281 Kan. 1168, 1170, 135 P .3d 1191 (2006). “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. [Citation omitted.]” State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
Here, the trial judge explicitly stated at sentencing that Sawyer would be sent to jail if he started drinking or stopped taking his medications, both of which were conditions of his probation. Despite this, Sawyer violated these conditions, and he admitted those violations. Considering these facts, the trial court did not abuse its discretion in revoking Sawyer's probation.
Sawyer also argues that the trial court erred in sentencing him because the sentence involved a departure to which the parties did not agree. Nevertheless, we do not endorse Sawyer's attempt to bootstrap this sentencing issue to the appeal of his probation revocation. For instance, the only notice of appeal in the record was filed after his probation revocation hearing. When Sawyer was sentenced, a criminal defendant had 14 days after the entry of judgment to file an appeal. See K.S.A.2010 Supp. 22–3608(c). Thus, Sawyer's challenge to his sentence is untimely and must be dismissed. Additionally, because Sawyer received a presumptive sentence, we have no jurisdiction to address this issue. See K.S.A. 21–4721(c)(1); State v. Burnett, 293 Kan. 840, 856, 270 P.3d 1115 (2012) (appellate court shall not review any sentence that is within the presumptive sentence for the crime).
Affirmed in part and dismissed in part.