Opinion
No. 110,448.
2014-11-7
STATE of Kansas, Appellee, v. Joseph William THOMAS, Appellant.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge.Adam D. Stolle, of Kansas Appellate Defender Office, for appellant.Natalie Chalmers, assistant solicitor general, for appellee.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge.
Adam D. Stolle, of Kansas Appellate Defender Office, for appellant. Natalie Chalmers, assistant solicitor general, for appellee.
Before MALONE, C.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Joseph William Thomas appeals the district court's order revoking his probation and requiring him to serve his underlying prison sentence. Finding no error, we affirm the district court's judgment.
On February 5, 2010, the State charged Thomas with two counts of sexual exploitation of a child after child pornography was discovered on his computer. Pursuant to a plea agreement, Thomas pled guilty to both charges; in exchange, the State agreed not to file any additional charges and not to oppose probation.
At the sentencing hearing on August 17, 2010, the district court found that Thomas was amenable to probation based on the availability of sex offender treatment and on the results of a psychosexual evaluation indicating that Thomas was at a moderate to low risk for recidivism if he completed the treatment program. The district court imposed concurrent standard sentences of 32 months in prison on each count, placed Thomas on probation for 36 months, and ordered that he be placed in community corrections and participate in the treatment program.
On April 2, 2013, the State filed a motion to revoke Thomas' probation, alleging that Thomas had failed to (1) notify his intensive supervision officer (ISO) of contact with law enforcement, (2) report to his ISO as directed, (3) disclose the use of alcohol and pornography, (4) seek and maintain gainful employment, (5) successfully complete sex offender treatment and mental health treatment, and (6) provide proof of completion of his GED. At a probation violation hearing on April 26, 2013, Thomas stipulated to the violations; as a result, the district court revoked Thomas' probation.
At a subsequent disposition hearing on May 17, 2013, the State presented evidence of Thomas' probation violations through the testimony of his ISO, Jessica Forbes. Forbes testified that she had been unable to make consistent contact with Thomas for several months prior to his probation revocation. Following a home visit on January 15, 2013, Thomas began regularly reporting again but then failed to report on February 27, 2013, and only began reporting again after his probation was revoked.
Forbes testified that one of the conditions of Thomas' probation was to submit to a sex offender evaluation and follow all recommendations. The evaluation recommended that Thomas engage in sex offender treatment in a community-based setting. Forbes stated that Thomas began treatment with the Associates of Hope Harbor in November 2010. Forbes explained that polygraph testing was a condition of the treatment.
In October 2012, Forbes became concerned when she learned that Thomas was attending parties where drugs and alcohol were present. Additionally, Thomas denied that he had accessed pornography since June, but polygraph test results indicated that he was being deceptive with that answer. Based on these concerns, Forbes visited Thomas' house to determine whether he had any access to pornography. When Forbes located several pornographic magazines in the house, Thomas expressed surprise and claimed he thought he had destroyed all the pornography. Forbes also discovered a laptop computer at the house. Thomas admitted that he had access to the computer, so it was seized and later searched. The computer contained a photo file that included over 60 explicit photos of adult women in various stages of undress. As a result of Thomas' dishonest polygraph results and the items discovered during the home visit, he was unsuccessfully discharged from treatment for noncompliance.
Based upon the evidence presented, the district court ordered Thomas to serve his underlying prison sentence of 32 months. In doing so, the district court explained that the serious nature of child pornography necessitates strict rules for reducing recidivism for those convicted of child sexual exploitation by either placing sex offenders in prison or ordering them to successfully complete sex offender treatment while on probation. In light of Thomas' failure to complete his current treatment, the district court expressed concern that Thomas was not amenable to treatment outside of prison.
On appeal, Thomas argues that the district court abused its discretion by ordering him to serve his underlying prison sentence. He claims that the district court erred in considering his failure to stay away from adult pornography as a violation of probation because it was not an actual condition of his probation but rather a recommendation of his probation officer. He contends that because he was “largely successful” on probation and because he was so close to successfully completing his probation, a 32–month prison sanction was too harsh a penalty for his mistakes.
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). An abuse of discretion only occurs when a judicial action is arbitrary, fanciful, or unreasonable; is based on an error of law; or is 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). Thomas bears the burden of demonstrating an abuse of discretion. See State v. Lowrance, 298 Kan. 274, 291, 312 P.3d 328 (2013).
We conclude that the evidence clearly supports the district court's decision to revoke Thomas' probation. Thomas stipulated to violating the terms of his probation. Thereafter, the district court revoked Thomas' probation due to his failure to successfully complete sex offender treatment. Thomas' inability to successfully complete the treatment was based on his dishonesty about, and his possession of, adult pornography. Regardless of whether avoiding adult pornography was itself a violation of Thomas' probation, there is no question that completing sex offender treatment was such a requirement or that Thomas failed to complete this treatment. Given that Thomas' convictions were based on his possession of child pornography, the district court was reasonably concerned about Thomas' dishonesty regarding his possession of adult pornography. Under these circumstances, the district court was well within its discretion in revoking Thomas' probation and ordering him to serve his underlying prison sentence.
Affirmed.