Opinion
111,946 111,947 111,948.
07-31-2015
STATE of Kansas, Appellee, v. Joshua TANNER, Appellant.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant. Ellen H. Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.
Ellen H. Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., BRUNS, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
In this consolidated appeal, Joshua Tanner appeals the district court's order revoking his probation and its order that he serve the underlying prison sentences in three Saline County cases: 13–CR–90, 13–CR–91, and 13–CR–92. He argues that the district court abused its discretion when it revoked his probation.
In case 13–CR–90, Tanner pled guilty as part of a plea agreement to one count of possession of methamphetamine and one count of misdemeanor theft. Although Tanner had a criminal history score of A, the State joined him in a motion for dispositional departure. On May 29, 2013, the district court sentenced him to 18 months' probation with an underlying prison term of 42 months. It also sentenced him to a concurrent term of 12 months in the county jail for the theft conviction.
In case 13–CR–91, Tanner was charged with one count of residential burglary and one count of theft. In case 13–CR–92, he was charged with one count of aggravated burglary, one count of criminal deprivation of property, and one count of theft. He agreed to plead guilty to residential burglary in 13–CR–91 and to aggravated burglary in 13–CR92. In return, the State agreed to drop all other charges in both cases, recommend dispositional departure sentences in both cases, and recommend a durational departure sentence of 32 months in 13–CR–92. The State also agreed to recommend that his sentences in cases 13–CR–91 and 13–CR–92 run consecutive to one another but concurrent to his sentence in 13–CR–90. Finally, the parties agreed that Tanner would remain in custody until he was sentenced in cases 13–CR–90, 13–CR–91, and 13–CR–92. The district court accepted his guilty pleas on May 29, 2013.
On June 25, 2013, the district court sentenced Tanner to prison terms of 32 months in both 13–CR–91 and 13–CR–92. It ordered these sentences to run consecutive to one another. Departing from the plea agreement, it also ordered the sentences to run consecutive to his sentence in 13–CR–90. It then granted Tanner a dispositional departure and ordered that he be placed on probation with community corrections for a term of 36 months.
The State filed a motion to revoke Tanner's probation in all three cases on September 6, 2013. It alleged that Tanner violated the terms of his probation by failing to obey all laws of the United States and Kansas, failing to report to his intensive supervision officer (ISO) as directed, possessing illegal drugs or illicit substances, and failing to comply with all treatment or counseling programs ordered by the court or deemed necessary by his ISO. Specifically, it claimed that Tanner (1) failed to report to Saline County Drug Court as directed on July 1, 2013, (2) admitted on July 3, 2013, to using methamphetamine the previous week, (3) was unsuccessfully discharged from Serenity House on August 16, 2013, (4) failed to report to Saline County Drug Court as directed on August 19, 2013, and (5) was arrested on August 27, 2013, on several charges. As a result of his August 27, 2013, arrest, he was eventually charged and convicted of possession of methamphetamine.
Two hearings were held on March 10, 2014. First, the district court conducted a sentencing hearing in case 13–CR–840, which concerned Tanner's new conviction for possession of methamphetamine. This case is not a part of this appeal, but significantly, the district court denied a motion for dispositional departure in that case and sentenced Tanner to 40 months in prison.
Immediately after sentencing in that case was complete, the district court held a probation revocation hearing relating to the three cases on appeal. Tanner stipulated to all of the alleged violations named in the State's motion. The State then argued that the district court should revoke Tanner's probation. It went on to recommend to the court that the sentences in cases 13–CR–90, 13–CR–91, and 13–CR–92 run concurrently rather than consecutively as the court had previously ordered. Tanner did not argue that his probation should not be revoked. Rather, he joined the State in requesting that the district court order the three sentences to run concurrently. The district court adopted these recommendations and ordered Tanner's sentences in 13–CR–90, 13–CR–91, and 13–CR–92 to run concurrently.
Analysis
Tanner's sole contention on appeal is that the district court erred by revoking his probation. First, we note that Tanner did not specifically argue below against the revocation of his probation in the cases on appeal. Generally, issues not raised before the district court cannot be raised for the first time on appeal. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). But at the sentencing hearing that immediately preceded the probation revocation hearing, Tanner did argue strenuously for a dispositional departure in case 13–CR–840 so that he could attend a treatment program in Dodge City. Although he actually made these arguments during a sentencing hearing for a case not before this court, he cites to them in order to support his claim that the district court erred in revoking his probation in cases 13–CR–90, 13–CR–91, and 13–CR–92. Given the confusing nature of holding the hearings back to back, we deem the issue properly preserved. Even so, Tanner's claim still fails.
Unless otherwise required by law, probation from serving a sentence is granted as a privilege, not as a matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once there has been evidence of 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). An abuse of discretion only occurs when a judicial action is arbitrary, fanciful, or unreasonable, based on an error of law, or based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). A decision is arbitrary, fanciful, or unreasonable when no reasonable person would have taken the view of the district court. State v. Wilson, 301 Kan. 403, 405, 343 P.3d 102 (2015).
In support of his argument that the district court abused its discretion, Tanner notes that his parents were the victims of some of his crimes and that they did not believe prison was the correct consequence for Tanner's crimes. He also asserts that the treatment program available in Dodge City would offer him a “new start.” Notwithstanding these facts, however, Tanner's significant criminal history and apparent willingness to reoffend leads us to conclude that a reasonable person could take the view that revocation of Tanner's probation was proper. As a result, the district court did not abuse its discretion when it revoked his probation in these cases and ordered him to serve his underlying sentences.
Affirmed.