State v. Gibson

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NOT DESIGNATED FOR PUBLICATION

No. 113,919

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.


DANA J. GIBSON,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed February 12,
2016. Affirmed in part and dismissed in part.

Submitted for summary disposition pursuant to K.S.A. 2014 Supp. 21-6820(g) and (h).

Before BRUNS, P.J., MCANANY, J., and JOHNSON, S.J.

Per Curiam: Dana J. Gibson appeals the district court's revocation of his
probation and the imposition of his prison sentence. Gibson also asserts that the use of
prior convictions at sentencing, without putting them to a jury and proving them beyond a
reasonable doubt, violated his constitutional rights under Apprendi v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

Gibson moved for a summary disposition of his appeal pursuant to Supreme Court
Rule 7.041A (2015 Kan. Ct. R. Annot. 67) in lieu of submitting an appellate brief. We
granted Gibson's motion. In a show cause order we questioned whether this appeal is now
moot. We have since learned that Gibson has completed his prison sentence. But he
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remains under postrelease supervision until April 4, 2016. Further, Gibson raises an
Apprendi issue which is not affected by the completion of his prison sentence.
Accordingly, we will consider Gibson's appeal.

Gibson was placed on probation following his convictions for possession of
methamphetamine and theft, with an underlying prison sentence of 12 months. Within 6
weeks of being granted probation Gibson was charged with probation violations. Based
on Gibson's conduct the State characterized him as "someone who's absconded from
probation, who is not taking the responsibilities and the opportunities for treatment that
are available in this community." Gibson stipulated to the violations and told the court, "I
was scared to go to prison at the same time so that's why I absconded." The district court
revoked Gibson's probation and declined to reinstate it, noting that Gibson's behavior of
absconding indicated that he was not a person who was going to successfully complete
probation. The district court imposed the underlying sentence based on Gibson's
"absconder status."

In his motion for a summary disposition of this appeal Gibson acknowledges that
he admitted to the court that he absconded from probation, and he cites as a controlling
statute K.S.A. 22-3716(c)(8) which deals with offenders who abscond from supervision
while on probation.

On appeal, Gibson argues the district court abused its discretion when it revoked
his probation and remanded him to serve his prison sentence. But Gibson acknowledges
that the court was not required by statute to first impose intermediate sanctions because
of Gibson's admission that he had absconded.

Unless required by law, probation is granted as a privilege and not as a matter of
right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). We will not overturn the
district court's order revoking Gibson's probation unless Gibson shows that the district
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court abused its discretion in doing so. See State v. Skolaut, 286 Kan. 219, 227-28, 182
P.3d 1231 (2008). 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. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). The party asserting
the district court abused its discretion bears the burden of showing such abuse of
discretion. State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).

Gibson does not contend the district court made an error of law or fact in its
ruling. The bases Gibson cites for reinstating his probation would have justified the
district court reinstating probation, but they did not compel the district court to do so. We
find nothing unreasonable about the district court's decision not to reinstate Gibson's
probation under the facts presented.

Gibson also argues that the district court violated his rights under the Sixth
Amendment to the United States Constitution when it increased his sentence based upon
his prior criminal history. He cites Apprendi in support. But Gibson's appeal on this issue
is untimely because he did not pursue a timely direct appeal after he was sentenced. See
K.S.A. 2014 Supp. 22-3608(c); State v. Inkelaar, 38 Kan. App. 2d 312, 317-18, 164 P.3d
844 (2007) (defendant's notice of appeal timely only as to his probation revocation and
not as to his original sentence), rev. denied 286 Kan. 1183 (2008). We conclude that we
have no jurisdiction to consider Gibson's Apprendi claim. Accordingly, this issue on
appeal is dismissed.

Affirmed in part and dismissed in part.