Opinion
No. 107,804.
2013-01-4
STATE of Kansas, Appellee, v. Robert SIMMONS, Jr., Appellant.
Appeal from Saline District Court; Rene S. Young, Judge.
Submitted for summary disposition pursuant to K.S.A.2011 Supp. 21–6820(g) and (h).
Before MALONE, C.J., BRUNS, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Robert Simmons, Jr., appeals the district court's decision revoking his probation and ordering him to serve his underlying sentence. We granted Simmons' motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 59). The State filed a response and joined in Simmons' motion for summary disposition.
On January 13, 2010, Simmons pled guilty to one count of aggravated indecent liberties with a child in violation of K.S.A. 21–3504(a)(l), a severity level 3 person felony. On May 3, 2010, the district court imposed a controlling sentence of 71 months' imprisonment. The district court granted Simmons' motion for dispositional departure and placed Simmons on probation for 60 months with community corrections.
On September 9, 2010, the State filed a motion to revoke Simmons' probation. The motion was amended twice. The second amended motion alleged that Simmons was in violation of his probation on numerous grounds, including refraining from violating the law and failing to obtain a sex offender evaluation.
On August 12, 2011, the district court held a probation violation hearing. At the hearing, Simmons was found to have violated his probation by (1) failing to tell his probation officer about a change of address, (2) failing to complete his sex offender evaluation, (3) failing to follow through with the recommendations of his drug treatment, and (4) being convicted of a new offense of possession of cocaine. Simmons' attorney argued that probation should be reinstated so that Simmons could receive another chance at treatment. The State argued that the probation should be revoked. After hearing the arguments, the district court stated:
“And it is clear to the Court, based upon the evidence presented to the Court that you have materially violated the terms of your probation in those cases, certainly by your new conviction in 10–CR–1026, And it's also very concerning to the Court that as it relates to 09–CR–1247, which is the case where you were convicted of Aggravated Indecent Liberties with a Child, that you failed to complete the sex offender evaluation.”
The district court revoked Simmons' probation and ordered him to serve his underlying sentence. Simmons timely appealed.
On appeal, Simmons claims the district court erred by revoking his probation and ordering him to serve his underlying sentence. Simmons acknowledges that the decision to revoke probation is within the sound discretion of the district court. However, Simmons maintains that the evidence demonstrated that he was willing to participate in treatment if given another chance. Simmons argues that the district court's decision to revoke his probation was outweighed by mitigating factors in his case.
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).
Here, Simmons stipulated to violating many conditions of his probation, including failing to complete his sex offender evaluation and failing to follow through with the recommendations of his drug treatment. He was also convicted of a new offense while on probation. The district court expressed concern that Simmons failed to complete the sex offender evaluation. Based on the record on appeal, the district court's decision to revoke Simmons' probation was not arbitrary, fanciful, or unreasonable. We conclude the district court did not abuse its discretion by revoking Simmons' probation and ordering him to serve his underlying sentence.
Finally, Simmons claims that the district court violated his constitutional rights in violation of Apprendi v. New Jersey, 540 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by using his prior criminal history to enhance his sentence. But Simmons was sentenced on May 3, 2010, and he failed to timely appeal his sentence within 10 days after the judgment of the district court. See K.S.A. 22–3608(c). The right to appeal is entirely statutory and is not found in either the United States Constitution or the Kansas Constitution. Because the filing of a timely notice of appeal from a sentence is jurisdictional, Simmons' failure to do so deprives this court of jurisdiction to review Simmons' sentence. See Barr v. State, 287 Kan. 190, 193, 196 P.3d 357 (2008). Thus, we dismiss Simmons' untimely attempt to appeal his sentence.
Affirmed in part and dismissed in part.