Opinion
No. 107,263.
2013-01-11
STATE of Kansas, Appellee, v. Shane T. YOUNKMAN, Appellant.
Appeal from Kearny District Court; Philip C. Vieux, Judge. Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Dennis C. Jones, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Kearny District Court; Philip C. Vieux, Judge.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Dennis C. Jones, county attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., MALONE, C. J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Shane T. Younkman appeals the district court's order revoking his probation and imposing his underlying prison sentence. He contends the evidence was insufficient to prove he had violated his probation and the district court abused its discretion in rendering its order. We find there was sufficient evidence that Younkman violated his probation and the court did not abuse its discretion. We affirm.
Younkman pleaded guilty to one count of aggravated indecent solicitation of a child and one count of abuse of a child. The district court sentenced him to an underlying prison sentence of 34 months on each count, to run consecutively, and placed Younkman on probation with community corrections for a period of 36 months.
We first note that the present violation of probation was not the first for Younkman. Approximately a year and a half into his probation term, Younkman's intensive supervision officer (ISO) moved to revoke probation for Younkman's failure to maintain employment. Younkman was apparently without employment for over 6 months before the district court acted on the motion. In November 2010, the court ordered Younkman's probation revoked and then reinstated it for an additional 24 months under the same terms and conditions that were previously ordered.
On July 21, 2011, the ISO subsequently filed the present motion to revoke probation alleging that Younkman had left Finney County without the ISO's permission. Following an evidentiary hearing, the district court found that the State had proven the allegation. The court then revoked probation and ordered that Younkman serve his underlying 68–month prison sentence. Sufficiency of the Evidence
A probationer may not have his or her probation revoked unless it is made to appear that the probationer has failed to comply with the conditions of probation. State v. Walker, 260 Kan. 803, 808, 926 P.2d 218 (1996). To sustain an order of revocation on the ground that a probationer has failed to comply, it is not necessary that the alleged violation be proven beyond a reasonable doubt. Rather, proof by a preponderance of the evidence is sufficient. State v. Lumley, 267 Kan. 4, 8, 977 P.2d 914 (1999)
Younkman and his ISO, Lana Essink, each testified at the hearing on the revocation motion. Their testimony conflicted as to crucial facts. Essink testified that Younkman spoke with her approximately a week before he was scheduled to go to Wichita for a doctor's appointment, and she gave him permission to leave Finney County on June 27 to attend his appointment. Younkman testified that a week before his appointment, he spoke with Essink and asked her if he could leave a day early, stay overnight in Wichita, and attend his appointment the following day. Younkman testified that Essink told him that this arrangement was acceptable but that Younkman would have to contact her before he left and tell her when he was going to return. Younkman indicated that on June 26 he called Essink and left her a voicemail and told her that he was leaving that day and would return the following Monday. Essink testified that she received Younkman's voicemail, but that she never gave him approval to leave for Wichita on the 26th and had told him that he would need her approval to stay overnight. Essink also testified that when she met with Younkman after he returned from Wichita, while she did not tell Younkman he would not be revoked for leaving a day early, she did tell him he would not get in trouble for it.
In his challenge to the sufficiency of the evidence, Younkman is essentially asking us to reweigh the evidence and find his version of the facts to be more credible than that of his ISO. The district court obviously chose to believe the ISO's testimony, and, clearly, that testimony was sufficient to establish that Younkman violated his probation as alleged. Because it is not the function of an appellate court to reweigh the evidence or evaluate the credibility of witnesses, see State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011), we conclude that Younkman's first issue on appeal lacks merit. Did the District Court Abuse Its Discretion?
We review a trial court's decision to revoke or reinstate probation under an abuse of discretion standard. A trial court abuses its discretion if an action is arbitrary, fanciful, or unreasonable, or stated another way, when no reasonable person would take the view adopted by the trial court. Walker, 260 Kan. at 808, 926 P.2d 218.
A district court may not revoke an individual's probation unless it is demonstrated that he or she has failed to comply with the terms and conditions of the probation. Once it has been established that a probation violation has occurred, revocation rests in the sound discretion of the district court. Swope v. Musser, 223 Kan. 133, 135–36, 573 P.2d 587 (1977).
The district court did not abuse its discretion in revoking Younkman's probation and ordering him to serve his underlying prison sentence. The court observed that Younkman had received several favorable breaks in the past in connection with this case. Specifically, the court noted the following facts: Younkman had received a favorable plea deal that involved the dismissal of several other cases in which he had been charged with several high level felonies; the sentencing court had granted Younkman's request for probation even though his convictions placed him in a border box and Younkman could have been sentenced to prison; the district court had granted Younkman's request to participate in an individual treatment program as a condition of his probation instead of the traditional treatment program offered by community corrections; and the district court had revoked and reinstated Younkman's probation for a previous violation. In light of these facts noted by the district court, we find nothing unreasonable about its revocation of Younkman's probation and imposition of the underlying prison sentence.
Affirmed.