Opinion
No. 106,594.
2012-05-11
STATE of Kansas, Appellee, v. John J. SMITH, Jr., Appellant.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge.
Submitted by the parties for summary disposition pursuant to K.S.A. 21–4721(g) and (h).
Before STANDRIDGE, P.J., MARQUARDT and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
John J. Smith, Jr. appeals the district court's decision revoking his probation and ordering him to serve his underlying sentence. He also challenges his underlying sentence contending that the use of his prior criminal history to determine his sentence, without putting it to a jury and proving it beyond a reasonable doubt violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We granted Smith's motion for summary disposition in lieu of briefs under Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 60). We conclude there was no abuse of discretion and affirm the district court's revocation of Smith's probation. In addition, because more than 14 days elapsed from Smith's sentencing to the filing of a notice of appeal, we lack jurisdiction over this portion of his appeal. Affirmed in part and dismissed in part.
Factual and Procedural History
On December 9, 2009, John Smith entered a guilty plea to an aggravated weapons violation (2009 case). He was ordered to serve 12 months' probation, with an underlying 11–month prison sentence. On April 5, 2011, Smith entered a guilty plea to one count of criminal possession of a firearm (2011 case). Subsequently on June 16, 2011, the district court revoked his probation in the 2009 case because of the new conviction and then reinstated it. On the same day, in the 2011 case, Smith was granted a dispositional departure sentence and he was placed on probation for 18 months, with an underlying 18–month prison sentence. The court ordered both cases to run consecutively to each other. Smith was advised that this would be a “zero tolerance” probation and any violations would result in Smith being sent to the penitentiary.
On June 21, just 5 days after his sentencing, Smith tested positive for methamphetamine and a warrant was issued for his arrest. At his probation revocation hearing, Smith admitted to using methamphetamine while on probation. Smith requested that the district court reinstate his probation, arguing that he had relapsed due to a stressful personal situation. The district court refused to reinstate Smith's probation and ordered him to serve his underlying sentence.
Analysis
Smith first contends that the district court erred in revoking his probation and imposing the underlying sentence because his circumstances sufficiently outweighed any violations of probation.
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).
Smith was granted a significant dispositional departure sentence just a few days before the probation violation warrant was issued, and the district court indicated its concern with the defendant's extensive criminal history and his ability to comply with probation. The court made it clear that it would not tolerate any violations. In fact, Smith's probation in the 2009 case had been revoked due to the 2011 case and reinstated at the same the time he was sentenced on the 2011 case. It only took the defendant 5 days to violate the court's orders. The district court found that based on his behavior it did not believe Smith was going to be able to get off drugs and comply with probation.
Having carefully reviewed the record of the revocation proceedings, we find no indication of arbitrary, fanciful, or unreasonable judicial action and thus decline to conclude there was any abuse of discretion in the district court's actions.
Next, Smith attempts to appeal his sentence in the 2011 case and argues that the use of his prior criminal history to determine his sentence, without putting it to a jury and proving it beyond a reasonable doubt violated his constitutional rights under Apprendi . Smith's claim fails for three reasons. First, an appeal from a sentence must be filed within 14 days of the sentence. Smith was sentenced on June 16, 2011, but did not file his notice of appeal until July 29, 2011. See K.S.A.2011 Supp. 22–3608(c). Moreover, even if his appeal had been timely, Smith received a presumptive sentence under Kansas Sentencing Guidelines and we lack jurisdiction to consider sentencing challenges when a defendant has received a presumptive sentence. See K.S.A.2011 Supp. 21–6820(c)(1). Accordingly, Smith's attempt to appeal the sentence in his 2011 case is dismissed for lack of jurisdiction.
And finally, even if we were to consider Smith's appeal of his sentence on the merits, it still fails. Our Supreme Court has rejected Smith's argument in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). Because we have no reason to believe that our Supreme Court will depart from its holding in Ivory, we conclude that even if we had jurisdiction to consider this issue, the district judge did not err by using Smith's prior convictions to compute the sentence imposed in this case. See State v. Merrills, 37 Kan. App, 2d 81, 83, 149 P.3d 869,rev. denied 284 Kan. 949 (2007).
Affirmed in part and dismissed in part.