State v. Gumfory
| Citation | 135 P.3d 1191 |
| Decision Date | 09 June 2006 |
| Docket Number | No. 94,575.,94,575. |
| Parties | STATE of Kansas, Appellee, v. Jason Martin GUMFORY, Appellant. |
| Court | United States State Supreme Court of Kansas |
Gerald E. Wells, of Lawrence, argued the cause and was on the brief for appellant.
Vernon E. Buck, county attorney, argued the cause, and Marc Goodman, county attorney and Phill Kline, attorney general, were with him on the brief for appellee.
Jason Martin Gumfory appeals the revocation of his probation and imposition of a prison sentence for his possession of methamphetamine conviction, contending his probation violations in the absence of judicial findings required by K.S.A.2005 Supp. 21-4729(f)(1) were legally insufficient to revoke his probation served in a mandatory drug abuse treatment program under K.S.A.2005 Supp. 21-4729. We affirm.
Gumfory pleaded guilty to one count of possession of methamphetamine. Pursuant to the plea agreement, on August 13, 2004, the district court granted a downward dispositional departure and sentenced the defendant to 18 months of mandatory drug treatment pursuant to K.S.A.2005 Supp. 21-4729 (). Relevant terms of the probation were to "[r]efrain from violating the law," "to complete the Drug Court Program," and to "sign a Drug Court Contract and comply with all conditions contained therein which are orders of this Court."
On October 26, 2004, the State filed a motion for revocation of probation with an accompanying affidavit stating that the defendant had been charged with disorderly conduct, assault of a law enforcement officer, and obstruction of legal process on October 8, 2004, and had been removed from the drug court program as "he is not appropriate due to safety concerns."
At the December 10, 2004, probation revocation hearing, the defendant stipulated that he had committed the new violations and that he had been removed from the drug abuse treatment court program. Defense counsel asked the court for a physiological evaluation because Gumfory was on medication which might have related to the "safety concerns" ground for probation revocation. The district court found the defendant was in violation of the conditions of his assignment to community corrections by reason of his convictions for disorderly conduct, assault of a law enforcement officer, and obstructing legal process, but granted the defendant 30 days to obtain an evaluation.
At the continued March 9, 2005, probation revocation hearing, the defendant had not yet obtained a mental health evaluation. The defendant disputed that he had refused to fill out the paperwork necessary to obtain the evaluation. The district court found that the defendant was in violation of the terms and conditions of his assignment to community corrections by being removed from and failing to complete the drug abuse treatment court program due to safety concerns and based on his new offenses. In considering dispositions, the district court first found that it did not have to consider placement in a treatment program because Gumfory had already been removed from the treatment program. After considering Labette Correctional Conservation Camp and community corrections, the court revoked probation and imposed the underlying prison sentence, reasoning that the defendant needed some type of physiological treatment on a continual basis and needed an extremely structured program in order to support that treatment.
The defendant timely appeals the revocation of his probation. Upon transfer of this case on our own motion, we have jurisdiction pursuant to K.S.A. 20-3018(c).
To sustain an order revoking probation on the ground that a probationer has committed a violation of the conditions of probation, commission of the violation must be established by a preponderance of the evidence. State v. Lumley, 267 Kan. 4, 8, 977 P.2d 914 (1999). Once there has been evidence of a violation of the conditions on which probation was granted, the decision to revoke probation rests in the sound discretion of the district court. State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). Judicial discretion is abused when no reasonable person would have taken the position taken by the trial court. State v. Robertson, 279 Kan. 291, 308, 109 P.3d 1174 (2005).
The defendant in this case was sentenced pursuant to S.B. 123, which establishes a nonprison sanction of completion of certified drug abuse treatment programs for certain offenders who are supervised by community corrections. K.S.A.2005 Supp. 21-4729(a), (d). Prior to the revocation hearing, the defendant was charged with three misdemeanors (disorderly conduct, assault of a law enforcement officer, and obstruction of legal process) and removed from the program due to "safety concerns." Based on these violations, and additional misdemeanor convictions, the district court revoked probation and imposed the underlying prison sentence.
The defendant argues the district court abused its discretion in revoking his S.B. 123 probation without making a judicial finding that any of the conditions necessary to revoke probation set forth in the Kansas Sentencing Commission's 2003 — Senate Bill 123 Alternative Sentencing Policy for Non-Violent Drug Possession Offenders Operations Manual (Implementation Manual) were present in this case. The State responds that the fact that the defendant violated the law and was removed from the drug abuse treatment court program, regardless of the reason, gave the sentencing court sufficient grounds to revoke probation and impose the original prison sentence. We agree.
K.S.A.2005 Supp. 21-4729(f) provides:
"(f)(1) Offenders in drug abuse treatment programs shall be discharged from such program if the offender:
(A) Is convicted of a new felony, other than a felony conviction of K.S.A. 65-4160 or 65-4162, and amendments thereto; or
(B) has a pattern of intentional conduct that demonstrates the offender's refusal to comply with or participate in the treatment program, as established by judicial finding.
(2) Offenders who are discharged from such program shall be subject to the revocation provisions of subsection (n) of K.S.A. 21-4603d, and amendments thereto."
K.S.A.2005 Supp. 21-4603d(n) provides in relevant part:
(Emphasis added.)
Relevant to these statutory provisions, the Implementation Manual provides:
• Conviction of a new felony offense other than felony drug possession;
• A judicial finding that the offender has a pattern of intentional conduct that demonstrates the offender's refusal to comply with or participate in the terms of the mandatory substance abuse treatment and supervision. Both community corrections and the treatment provider must make this joint recommendation to the sentencing court;
• Absent a judicial finding, condition violations alone will not result in discharge from the mandatory drug abuse treatment; and
• Each and every condition violation shall be subject to some form of non-prison sanctions as defined by statute. Non-prison sanctions may include, but are not limited to, county jail time, fines, community service, intensified treatment, house arrest, electronic monitoring, etc." (Emphasis added.) Implementation Manual, p. 60.
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