Opinion
No. 106,669.
2012-05-25
STATE of Kansas, Appellee, v. Ashley R. VAN PETTEN, Appellant.
Appeal from Shawnee District Court; Evelyn Z. Wilson, Judge.
Submitted by the parties for summary disposition pursuant to K.S.A. 21–4721(g) and (h).
Before HILL, P.J., PIERRON and LEBEN, JJ.
MEMORANDUM OPINION
LEBEN, J.
Ashley Van Petten received probation after her conviction for three offenses: felony possession of methamphetamine and the misdemeanor offenses of possession of drug paraphernalia and criminal deprivation of property. While on probation, she admittedly violated her probation by failing to report to her probation officer and by twice failing to report for drug testing. The district court found that Van Petten had violated her probation and ordered that she serve her underlying prison sentence.
Van Petten appeals, contending that the district court erred both in revoking her probation and in requiring that she serve her underlying sentence. But Van Petten admitted to facts that demonstrated she had violated her probation, and once the district court determines that the terms of probation have been violated, it's within that court's discretion whether to revoke probation and require the defendant to serve the underlying sentence. We find no abuse of discretion in revoking Van Petten's probation.
The legal rules applicable to this appeal are straightforward. A district court's decision to revoke probation must be based on a factual finding that a condition of probation has been violated. Once a violation has been established, the decision to revoke probation is within the discretion of the district court. State v. Skolaut, 286 Kan. 219, 227–28, 182 P.3d 1231 (2008); see State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). We may find an abuse of discretion only when no reasonable person would agree with the decision made by the district court. State v. Gumfory, 281 Kan. 1168, Syl. ¶ 1, 135 P.3d 1191 (2006).
Van Petten clearly violated her probation, and she did so in significant ways. Convicted of drug offenses, she failed to report for supervision and failed to report for drug testing. At the hearing at which the court considered whether to send Van Petten back to prison, the court learned from Van Petten's probation officers that she had recently been given another opportunity for drug treatment under a probation in another case but had never shown up at the treatment program. In addition, a probation officer said that she had made two appointments with Van Petten after the proceedings to revoke her probation for violations had begun, but that Van Petten hadn't shown up for any appointments with the probation officer. As the probation officer reported, “She's not shown up once. Probation will do absolutely no good if she doesn't show up.” Moreover, Van Petten had gotten a break from the court when it initially gave her probation—Van Petten could have been sent to prison initially because her felony offense was a presumptive-prison offense based on her criminal-history score, but the court had granted a downward-dispositional departure to probation.
The district court was not required to give Van Petten a second chance at probation, and we find nothing unreasonable about the district court's decision to revoke Van Petten's probation in these circumstances.
On Van Petten's motion, we accepted this appeal for summary disposition under K.S.A. 21–4721(g) and (h) and Supreme Court Rule 7 .041a (2011 Kan. Ct. R. Annot. 60). We have reviewed the record that was available to the sentencing court, and we find no error in its decision to revoke Van Petten's probation and require that she serve her underlying sentence.
The judgment of the district court is therefore affirmed.