State v. Mosher

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NOT DESIGNATED FOR PUBLICATION

Nos. 113,443
113,444

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TRINA MOSHER,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; WILLIAM SIOUX WOOLLEY, judge. Opinion filed
November 6, 2015. Affirmed.

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

Before MALONE, C.J., PIERRON and SCHROEDER, JJ.

Per Curiam: Trina Louise Mosher appeals the district court's decision revoking
her probation and ordering her to serve her underlying prison sentence in two
consolidated cases. We granted Mosher's motion for summary disposition in lieu of briefs
pursuant to Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 66). The State filed a
response and requested that the district court's judgment be affirmed.

In 13CR1423, Mosher was convicted of two counts of aggravated burglary and
two counts of theft after a prior conviction. In 13CR1597, Mosher was convicted of one
count of theft after a prior conviction and one count of criminal use of a financial card.
On March 12, 2014, the district court imposed a controlling sentence of 130 months'
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imprisonment but granted a dispositional departure to probation with community
corrections for 36 months. Mosher did not timely appeal her sentence.

At a hearing on January 16, 2015, Mosher stipulated to violating the conditions of
her probation by committing the new crime of driving with a suspended license. After
hearing evidence, the district court also found that she had violated her probation by
possessing drug paraphernalia. Mosher asked for reinstatement to probation so she could
continue her drug treatment. However, the district court found her not amenable to
probation due to the commission of a new crime and remanded her to prison to serve her
original sentence. Mosher timely appealed from the probation revocation.

On appeal, Mosher claims that the district court erred in revoking her probation
and ordering her to serve her underlying prison sentence. Mosher acknowledges that the
decision to revoke probation rests within the district court's sound discretion.

Probation from service of a sentence is an act of grace by the sentencing judge
and, unless otherwise required by law, is granted as a privilege, not as a matter of right.
State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once the State has proven a
violation of the conditions of probation, probation revocation is within the sound
discretion of the district court. State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). 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.
Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). 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).

K.S.A. 2014 Supp. 22-3716(c)(8) provides that if the offender commits a new
felony or misdemeanor while on probation, the district court may revoke probation
without having previously imposed an intermediate sanction. Because Mosher committed
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a new crime while on probation, the district court was not required to consider an
intermediate sanction before revoking her probation. In rejecting Mosher's request for
reinstatement to probation, the district court stated as follows:

"At sentencing the defendant told me she is going to do and has done what she
can to try to do to make sure it doesn't happen again, and she told me she wants just one
more chance. Those were her words to me, not from my notes.
"The charges in this case and the crimes of conviction were significant, and she is
looking at 130 months. The Court ran all the counts concurrent, and without having done
so, she could have been looking at up to another 40 to 60 months on top of the 130
months. So she was looking at a significant sentence, and had significant incentive to try
to not be in the position where she would violate the terms and conditions of probation.
But she placed herself in those positions.
"She is not eligible for the Residential program. She is not eligible for Drug
Court. So the Court agrees with the State's argument that we have run through the
resources that are available to Ms. Mosher.
"The Court finds under the facts and circumstances of this case that the defendant
is not amenable for probation.
"The Court finds because this Court has found that she has committed a new
felony or misdemeanor, that intermediation sanctions under 2170 are not required. And
therefore, ma'am, the Court is going to direct that you go and serve your sentence.
"That will be the order of the Court."

The district court's decision to revoke Mosher's probation was not arbitrary,
fanciful, or unreasonable, and the decision was not based on an error of law or fact. See
Ward, 292 Kan. at 550. Thus, we conclude the district court did not abuse its discretion in
revoking Mosher's probation and ordering her to serve her underlying prison sentence.

Affirmed.