State v. Miles

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NOT DESIGNATED FOR PUBLICATION

Nos. 113,624
113,625


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TISH C. MILES,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; WILLIAM SIOUX WOOLLEY, judge. Opinion filed July 1,
2016. Affirmed.

Submitted by the parties for summary disposition pursuant to K.S.A. 2015 Supp. 21-6820(g) and
(h).

Before MCANANY, P.J., HILL and BRUNS, JJ.

Per Curiam: Tish C. Miles appeals the order revoking her probation in two
Sedgwick County criminal cases and ordering her to serve the original sentences. Miles
contends that because of her mental health issues, the court should have reinstated her
probation and placed her in a residential facility where she could seek help for her
problems. Based on our review of the record, the district court acted well within its
discretion, so we affirm.

The State charged Miles with one count of forgery in Sedgwick County case No.
13CR2886 in October 2013. Several months later, Miles pled guilty to the charge and
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was ultimately sentenced to 14 months in prison, which was suspended, and she was
placed on probation with court services for 12 months.

Then in June 2014, the State obtained a warrant alleging Miles had violated the
terms of her probation when she tested positive for methamphetamine and failed to pay
her fines and court costs. At about the same time, Miles was charged in Sedgwick County
case No. 14CR1390 with three counts of felony forgery. Miles pled guilty to the new
charges. A combined sentencing/probation violation hearing was held in August 2014,
during which Miles stipulated to the probation violations alleged in the State's warrant.
For the charges in 14CR1390, Miles was sentenced to a controlling term of 30 months in
prison that is to be served consecutive to the sentence imposed in 13CR2886 and any
other prior convictions. The court then suspended that sentence, placed Miles on 18
months' probation in 14CR1390, and extended her probation in the 2013 case for the
same period. Miles was ordered to serve 60 days in jail as a sanction.

About 4 months later, the State alleged Miles violated the terms of her probation
in both cases. She was arrested for identify fraud, possession of opiates, and possession
of drug paraphernalia. The State further alleged Miles failed to report to her probation
officer, failed to attend cognitive skills classes as directed, and that she tested positive for
methamphetamine and amphetamines.

The court held a consolidated hearing in January 2015 in both cases. Miles
stipulated that the State could prove her violations by a preponderance of the evidence
and waived an evidentiary hearing. Miles' counsel argued that Miles had never had a
mental health evaluation and that prison would not help the mental health issues counsel
believed were an issue for Miles. Counsel asserted that the probation office had indicated
that residential corrections was a possibility and it had a bed available for her. The court
reviewed Miles' history in the cases and found she continued her drug use and criminal
activities despite the opportunities given to her. The court found Miles was not amenable
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to probation and that her welfare would not be served by reinstating her probation. The
court revoked her probation and ordered her to serve her underlying sentences; it declined
her request to modify the sentences by ordering them to run concurrently.

On appeal, Miles was granted leave to seek summary disposition in lieu of briefing
pursuant to K.S.A. 2015 Supp. 21-6820(g) and (h) and Supreme Court Rule 7.041A
(2015 Kan. Ct. R. Annot. 67). In her motion, Miles reiterates her arguments regarding her
mental health issues warranting another chance at probation. The State filed a response to
Miles' summary disposition motion supporting the district court's decision.

Where the issue is the propriety of the sanction imposed by the district court for a
probationer's violation of the terms and conditions of probation, the standard of review is
an abuse of discretion. State v. Hurley, 303 Kan. 575, 580, 363 P.3d 1095 (2016).
Probation is a privilege granted by the sentencing court, and the court has broad power
and authority in imposing conditions of probation so long as such conditions do not
violate statutory law or constitute an abuse of discretion by the court. State v. Collins, 303
Kan. 472, 476, 362 P.3d 1098 (2015). Judicial discretion is abused if the action is (1)
arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error
of fact. Miles bears the burden of showing such an abuse of discretion. State v.
McFeeters, 52 Kan. App. 2d 45, 47, 362 P.3d 603 (2015).

Here, Miles does not assert the district court made its revocation decision due to
an error of law or an error of fact. She simply asserts the decision was unreasonable
under the circumstances. We disagree. Although Miles relies on her alleged mental health
issues, there is no mental health evaluation in the record. Instead, it appears from her
criminal history record and probation violations that Miles has an issue with using illegal
drugs and engaging in criminal activity. Miles was given several opportunities to remain
out of prison, but she managed to consistently commit new offenses and otherwise violate
the terms of her probation. While another judge may have concluded that some form of
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residential corrections would have been a viable opportunity, we cannot find the court's
decision unreasonable or arbitrary in light of Miles' apparent inability to comply with her
terms of probation for any meaningful period.

Affirmed.