Opinion
111,558.
11-14-2014
STATE of Kansas, Appellee, v. Christopher L. TURNER, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Christopher L. Turner appeals the district court's decision revoking his probation and ordering him to serve his original sentence. We granted Turner's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2013 Kan. Ct. R. Annot. 63). The State filed a response and requested that the district court's judgment be affirmed.
On April 4, 2013, Turner pled guilty to one count of criminal possession of a firearm and one count of possession of marijuana. On May 10, 2013, the district court sentenced him to 19 months' imprisonment, the aggravated number in the gridbox, for criminal possession of a firearm and a consecutive sentence of 5 months in the county jail for possession of marijuana. However, the district court placed Turner on probation with community corrections for 18 months. Turner filed a notice of appeal of his sentence with the district court, but he never docketed that notice of appeal with this court.
On September 10, 2013, a probation violation warrant was filed alleging that Turner had committed a new offense of felony theft. At a hearing on January 16, 2014, Turner admitted that he violated his probation by committing a new offense of felony theft for which he was subsequently convicted. The district court revoked Turner's probation and ordered him to serve his original sentence. On January 17, 2014, Turner filed a second notice of appeal, which ultimately was docketed with this court. Turner's docketing statement indicates that he is only appealing the revocation of his probation.
On appeal, Turner claims that the violation of his probation was outweighed by mitigating factors. Specifically, Turner notes that at the time of his probation violation hearing, he had enrolled in Wright Community College, he had an ability and willingness to work, and he was expecting a child in 3 months. Turner states, “Given these mitigating circumstances the district court erred in revoking [his] probation and ordering him to serve his original sentence without first imposing an intermediate sanction.”
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). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) 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).
Turner acknowledges that under K.S.A.2013 Supp. 22–3716(c)(8), if the offender commits a new felony or misdemeanor while on probation, the district court may revoke probation without having previously imposed an intermediate sanction. Thus, the district court was not required to impose an intermediate sanction before revoking Turner's probation. Turner committed a new felony offense within a short time after he was placed on probation. The district court's decision to revoke Turner's probation was not arbitrary, fanciful, or unreasonable, and the decision was not based on an error of law or fact. See Ward, 292 Kan. at 550. Thus, we conclude the district court did not abuse its discretion in revoking Turner's probation and ordering him to serve his original sentence.
Turner also claims the district court erred by sentencing him to the aggravated number in the gridbox without requiring the aggravated factors to be proved to a jury beyond a reasonable doubt. He further claims the district court violated his constitutional rights when it used his criminal history to increase his sentence without requiring the criminal history to be proved to a jury beyond a reasonable doubt. But as the State notes, Turner's notice of appeal filed on January 17, 2014, was untimely to appeal his sentence imposed on May 10, 2013. See K.S.A.2013 Supp. 22–3608(c) ; State v. Inkelaar, 38 Kan.App.2d 312, 317–18, 164 P.3d 844 (2007), rev. denied 286 Kan. 1183 (2008) (defendant's notice of appeal was timely only as to his probation revocation and not as to his original sentence). Thus, this court lacks jurisdiction to consider Turner's appeal of his original sentence.
Affirmed in part and dismissed in part.