Opinion
111,775.
07-31-2015
STATE of Kansas, Appellee, v. David D.R. WOODS, Appellant.
Corrine E. Johnson, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Corrine E. Johnson, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., BRUNS, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
David D.R. Woods appeals the district court's order revoking his probation and its order that he serve his underlying prison sentence. First, he argues that the district court erred by revoking his probation without allowing him to argue for alternative dispositions. Second, he argues the district court erred by failing to reinstate his probation.
Facts
On August 23, 2012, Woods pled guilty to one count of aggravated battery, one count of aggravated endangering a child, one count of burglary, and one count of theft. At sentencing, Woods orally moved for a dispositional departure sentence. The district court granted the motion and placed Woods on probation with community corrections field services for 24 months. It also warned Woods that he was going to be on “no-tolerance probation.”
On October 12, 2012, a warrant was issued for Woods' arrest. It alleged that Woods violated the conditions of his probation by failing to report for scheduled office visits as directed on two different occasions and by failing to notify his probation officer of a change in address within 24 hours. A probation violation hearing was held on February 20, 2013.
At the hearing, Woods admitted to the allegations contained in the warrant and waived an evidentiary hearing. Based on his admissions, the district court found that he had violated his probation and declared that it was revoking his probation. It then asked for the parties' recommendations regarding disposition. The State recommended that the district court impose the original underlying prison sentence. It argued that prison was appropriate because Woods had a criminal history score of A and had already failed to abide by the terms of probation.
Woods' attorney spoke next. He noted that the victim in this case was Woods' wife and that he therefore had a no-contact order in place preventing him from living with his wife and kids. He stated that Woods was forced to stay with friends after he was sentenced. Despite this, Woods maintained full-time employment, paid rent on the house where his wife and kids lived, and bought his wife a car. Further, he had not used any substances and did not reoffend while on probation. Finally, Woods expressed a desire to make his marriage work. His attorney informed the district court that Woods' probation officer had suggested that a residential facility would be a proper placement for him and requested that the district court allow him the opportunity to continue his probation in such a facility.
At this point, the district court noted that a probationer's failure to report is so fundamental that it destroys the court's confidence in that person's ability to comply with the terms of his or her probation. The court also noted that Woods had a criminal history score of A and that it had informed him at sentencing that he was on “no-tolerance probation.” The court determined that community based supervision was inappropriate at any level and ordered Woods to serve his underlying prison sentence. Woods appeals.
Analysis
Due process
Woods argues that the district court erred by not allowing him to argue for alternative dispositions. He takes issue with the district court's decision to revoke his probation immediately upon finding that he had violated the terms of his probation and without hearing any argument as to what the appropriate disposition was as a result of those violations. In essence, he argues the district court failed to follow the procedures outlined in K.S.A.2012 Supp. 22–3716(b) for probation violation hearings and this limited his ability to argue for an appropriate disposition. Resolution of this claim requires the interpretation of a statute, which is a question of law over which this court exercises unlimited review. State v. Kendall, 300 Kan. 515, 520, 331 P.3d 763 (2014).
K.S.A.2012 Supp. 22–3716 governs probation violation hearings. It states that if a person on probation is found to have violated the terms of his or her probation:
“the court may continue or revoke the probation, assignment to a community correctional services program, suspension of sentence or nonprison sanction and may require the defendant to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.” K.S.A.2012 Supp. 22–3716(b).
This statutory language does not preclude a district court from first revoking probation and then considering whether the underlying sentence should be imposed. The underlying issue is due process: whether Woods was afforded an opportunity to show that there was a justifiable excuse for the violation or that revocation was not the appropriate disposition. See State v. Skolaut, 286 Kan. 219, 229, 182 P.3d 1231 (2008) (one who is accused of violating his or her probation must be provided an opportunity to show not only that he or she did not violate the conditions, but also that there was a justifiable excuse for any violation or that revocation is not the appropriate disposition). Based on the evidentiary record, we find no procedural due process violation here. The district court declared that it was revoking Woods' probation after finding that Woods violated his probation but before moving on to the disposition stage. During the disposition phase of the proceedings, however, Woods was provided with—and took advantage of—the opportunity to present a justifiable excuse for his violation and to argue that continuation of probation was the more appropriate disposition. Woods was free to argue for any disposition the district court had the power to order and did so by asking the court to place him back on probation but in a residential facility. There is no indication that the district court limited the parties' abilities to argue for or against any appropriate disposition.
Disposition
Woods next argues that the district court erred by refusing to reinstate his probation. Unless otherwise required by law, probation from serving a sentence is a privilege, not 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).
Here, Woods admitted to violating his probation, so the decision to revoke his probation and order him to serve his underlying sentence was in the sound discretion of the district court. On appeal, he repeats the arguments he made below in support of reinstating his probation. He also asserts that his main obstacle to successfully completing his probation was his lack of a stable residence and that the district court failed to consider more restrictive community-based alternatives before ordering him to serve his prison term. Contrary to Woods' assertion, the district court considered such alternatives and then specifically found that “community-based supervision at this point is wholly inappropriate at any level.”
Woods was warned at sentencing that the district court would not tolerate any probation violations. Yet, he violated his probation early on by failing to report for scheduled office visits and by failing to notify his probation officer of a change in address. The district court's decision to revoke Woods' probation and impose his underlying prison sentence was not arbitrary, fanciful, unreasonable, or erroneous. As such, we find no abuse of discretion.
Affirmed.