State v. Moore

1

NOT DESIGNATED FOR PUBLICATION

Nos. 113,934
113,946
113,947

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

LOWELL MOORE,
Appellant.

MEMORANDUM OPINION


Appeal from Sedgwick District Court; DOUGLAS R. ROTH, judge. Opinion filed July 1, 2016.
Affirmed.

Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for
appellant.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before POWELL, P.J., PIERRON and ATCHESON, JJ.

Per Curiam: Lowell Moore appeals from the district court's order revoking his
probation in three separate Sedgwick County cases. He contends the district court abused
its discretion by revoking his probation and ordering him to serve a reduced prison
sentence. He makes these arguments despite the fact he originally faced presumptive
prison sentences and had previously been given intermediate sanctions for various prior
probation violations. Finding no abuse of discretion, we affirm.
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Moore was first charged in case No. 13CR0205 with burglary and misdemeanor
theft. He pled guilty as charged. Although he faced a presumptive prison sentence
because of his prior burglary convictions, the court granted Moore a departure sentence to
24 months' probation with an underlying 23-month prison term. The sentence was
imposed on April 9, 2013.

There appears to be an error in the journal entry of sentencing for 13CR0205.
Although one portion of the journal entry stated the district court was imposing the
aggravated presumptive term of 23 months' underlying prison sentence, the sentence
"recap" section stated the underlying prison term was 21 months. The journal entry in
case No. 13CR2380 also indicated there was a 21-month sentence imposed in 13CR0205.
The record does not include the sentencing transcript from this case to determine the
actual sentence pronounced. However, in their briefs, both parties agree the underlying
prison sentence in the case was for 23 months.

Just days after he pled guilty to the charges in 13CR0205, the State charged Moore
in case No. 13CR0657 with theft of property valued less than $1,000 after a prior theft
conviction, a felony. Several months later, he pled guilty to an amended charge of
misdemeanor theft. Moore ultimately was sentenced to 12 months' probation with an
underlying prison term of 18 months' incarceration. The sentence was ordered to run
consecutively to other cases. Moore also was ordered, in addition to standard probation
conditions, to complete the drug court program and follow that program's
recommendations.

Within 6 weeks after his sentencing in 13CR0205 and his guilty plea in
13CR0657, a warrant was issued alleging Moore had violated the terms of his probation
in a variety of ways. His alleged violations included testing positive for and admitting to
using amphetamines, failing to obtain a drug and alcohol evaluation, and failing to report.
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In addition, a warrant for probation violations was issued based upon Moore's arrest for
the charges ultimately filed in 13CR2380. As a result, the terms of Moore's probation
were modified and his probation was extended for 18 months.

After being sentenced in 13CR0205 and while 13CR0657 was pending, Moore
was arrested in August 2013 and charged with possession of methamphetamine. Moore
pled guilty in 13CR2380 to the severity level 5 drug felony in October 2013. In February
2014, the district court again had the option of sending Moore to prison because his crime
fell in a border box on the sentencing guidelines drug grid and because he had committed
this offense while on probation for a felony offense. Instead, the court again placed
Moore on probation for 18 months with an underlying prison term of 32 months' in
prison. This sentence was ordered to run consecutively to the sentences in the other two
cases. Again, Moore was directed to enter and successfully complete the Sedgwick
County Drug Court Program. Moore was in custody for this offense from August 2013 to
March 2014.

Approximately 90 days after his sentencing in the third case, yet another warrant
for probation violations was filed. This warrant alleged Moore had lied to his intensive
supervision officer (ISO) about his employment, failed to attend a scheduled meeting
with his ISO, failed to submit to urinalysis testing twice, and submitted a urine sample
that was positive for amphetamines. As a result, the district court ordered Moore to serve
180 days with the Department of Corrections (DOC) as an intermediate sanction. Moore
was incarcerated with the DOC from June 30, 2014, to September 19, 2014.

Within 2 weeks of his release from the DOC, yet another warrant was issued for
Moore for probation violations. The warrant alleged Moore had failed to report for a
scheduled urinalysis test twice, failed to report his new address after being turned out of a
treatment facility, and failed to report for his weekly office visit or his scheduled drug
and alcohol treatment session.
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At a revocation hearing on December 30, 2014, Moore waived his right to an
evidentiary hearing and admitted all the allegations set forth in the warrant. Moore
implored the district court to allow him another chance at probation with a requirement
that he receive inpatient drug treatment. Moore admitted he left the state to try to get into
a drug treatment program in Oklahoma. He found that the drug court program did not
help him because it was not a one-on-one situation and others in the group did not take
the program seriously. In the alternative, Moore requested the court modify and reduce
the consecutive 65-month underlying prison sentences.

The district court considered Moore's arguments. The court noted that it nearly
sentenced Moore to prison at the original sentencing hearing in 13CR2380, but instead
agreed that Moore be reevaluated by the drug court program staff. The court discussed
the prior sanctions imposed for Moore's ongoing violations and his actions in continuing
to violate the terms, including absconding from supervision. The court revoked Moore's
probation and ordered him to serve his felony sentences, reduced by 5 months. The court
then stated it would review Moore's misdemeanor sentence when he is released from the
DOC. Moore timely appealed the revocations in all three cases.

On appeal, Moore argues that because his probation violations were directly
related to his drug addictions, it was an abuse of discretion for the district court to order
him to serve a prison sentence rather than requiring him to complete inpatient treatment.
He claims that the structure of inpatient treatment may well have allowed him to
successfully complete his probation when outpatient treatment and drug court failed.
Defense counsel also attempted to assume some responsibility because he failed to raise
the suggestion for inpatient treatment when Moore's prior violations occurred, especially
when Moore had asked counsel about such treatment for some time.

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Moore correctly admits our review of the district court's decision is highly
deferential. Once the State has proven that a probation violation has occurred, the
decision whether to revoke probation rests with the sound discretion of the district court.
The burden rests on Moore to show that an abuse of discretion has occurred in this case.
State v. McFeeters, 52 Kan. App. 2d 45, 47, 362 P.3d 603 (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. [Citation omitted.]" 52 Kan. App. 2d at 47.

Moore does not claim the district court based its decision on an error of law or
fact. Instead, he simply argues that the revocation decision was unreasonable under the
circumstances. We disagree. Probation is an act of grace by the district court and, unless
otherwise required by law, is granted as a privilege, not as a matter of right. State v.
Ottinger, 46 Kan. App. 2d 647, 654, 264 P.3d 1027 (2011).

In this case, the district court exercised its discretion and placed Moore on
probation initially in a case which called for a presumptive prison sentence. Even when
Moore committed a new offense, the court again granted probation and directed Moore to
the services available through drug court. Regrettably, Moore failed to take full
advantage of those opportunities and continued to violate the terms of his probation and
even absconded from supervision. Given Moore's long criminal history and his repeated
failure while on probation in these cases, the district court cannot be said to have abused
its discretion in revoking Moore's probation and ordering him to serve a prison sentence.

Affirmed.