Opinion
Nos. 111,001 111,002.
2014-11-14
STATE of Kansas, Appellee, v. Gregory OROZCO, Appellant.
Appeal from Wyandotte District Court; Wesley K. Griffin, Judge.Samuel Schirer, of Kansas Appellate Defender Office, for appellant.Susan Alig, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Wesley K. Griffin, Judge.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant. Susan Alig, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., BRUNS, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Gregory Orozco pled guilty to possession of methamphetamine in case number 11 CR 1363 and to attempting to elude a police officer in case number 11 CR 1368. Orozco was granted consecutive terms of probation, and his probation was ultimately revoked. Orozco appeals the revocation of his probation alleging that the trial court failed to impose a sentence after revoking his probation, and that the trial court lacked jurisdiction to revoke his second term of probation that had not started. Finding no reversible error, we affirm.
On March 8, 2012, Gregory Orozco pled guilty to possession of methamphetamine in case number 11 CR 1363 and attempting to elude a police officer in case number 11 CR 1368. On April 20, 2012, the trial court imposed consecutive 12–month terms of probation, with an underlying sentence of 34 months in prison for the possession of methamphetamine charge and 12 months in prison for the attempting to elude a police officer charge. The trial court explicitly stated that probation in case number 11 CR 1363 would begin before probation in case number 11 CR 1368.
On April 8, 2013, the State moved to revoke Orozco's probation, alleging that he had violated numerous terms of his probation. Then, on June 5, 2013, the State filed an amended motion to revoke Orozco's probation alleging that he had committed a new crime. A revocation hearing was held on June 14, 2013. At the revocation hearing, the State requested that the court revoke Orozco's probation and sentence him to his original sentence in both cases. Orozco stipulated to violating his probation. As a result, the trial court revoked Orozco's probation in both cases. The trial court held as follows:
“[T]he positives, positive UA's, failed to submit, failed to appear, it's just cumulative and the court based on all the facts in this case, the cases I guess, both of them, is granting the State's request for probation revocation in both cases.
....
... “But respectfully, the request by the State—your request to send you to in patient, while I too believe it would be a good thing, that is denied and your probation is being revoked.”
The sentencing journal entry stated that Orozco's probation was revoked and that he was ordered to serve his underlying prison sentences. Orozco timely appealed his two cases separately. Our court consolidated those appeals. Did the Trial Court Err in Failing to Impose a Sentence After Revoking Orozco's Probation?
On appeal, Orozco contends that the trial court erred in failing to orally pronounce his sentence after it revoked his probation. Orozco argues that without an orally pronounced sentence he has not been sentenced for his probation violations. Thus, Orozco asks this court to remand the case for resentencing.
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 it is proven that a violation of the conditions of probation has occurred, it is within the sound discretion of the trial court to revoke the probation. State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001).
The trial court is authorized to order a defendant to serve his or her original underlying sentence or any lesser sentence upon revoking probation:
“(b) ... [I]f the [probation] violation is established, the court may continue to revoke the probation, assignment to a community correctional services program, suspension of sentence or nonprison sanction and may require the defendant to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.” K.S.A.2012 Supp. 22–3716(b).
Orozco argues that the trial court was required to orally pronounce his sentence after revoking his probation. Moreover, he further contends that the silence on the matter requires that his case be remanded for resentencing.
In support of his argument, Orozco cites Abasolo v. State, 284 Kan. 299, 160 P.3d 471 (2007). In Abasolo, the defendant was originally sentenced to 52 months' imprisonment but was placed on probation. After a short time, the defendant stipulated to violating her probation, and the trial court revoked her probation. The trial judge mistakenly believed that the defendant's original sentence was 36 months' imprisonment, rather than 52 months. As a result, the trial judge orally ordered her to serve 36 months' imprisonment. The journal entry on the other hand, showed that the defendant was sentenced to her original underlying sentence of 52 months' imprisonment. 284 Kan. at 300. On appeal, our Supreme Court held that the sentence of 36 months was the proper term of imprisonment, finding that under K.S.A. 22–3716(b), the trial court had the authority to impose a lesser sentence at the probation revocation hearing. Thus, the court held that the term of 36 months' imprisonment that was orally pronounced at the hearing controlled over the journal entry. 284 Kan. at 310.
Orozco argues that based on Abasolo the trial court must orally pronounce an express term of imprisonment at the probation violation hearing. This reading of Abasolo is too broad. A criminal sentence is effective when pronounced from the bench because the defendant is personally present and thus knows what the sentence is. 284 Kan. at 304. Moreover, Orozco's reliance on Abasolo is misplaced. Unlike in Abasolo, Orozco's original sentence was not modified at his probation revocation hearing. The trial court ordered Orozco to serve his original prison sentences. Therefore, Abasolo is inapplicable.
Instead, we draw guidance from several recent unpublished opinions of our court. In Semotuk v. State, No. 108,553, 2013 WL 1688863, at *5 (Kan.App.2013) (unpublished opinion), rev. denied 297 Kan. 1247 (2013), this court held that the trial court did not modify the defendant's sentence upon revoking probation and, thus, it was not required to make an oral pronouncement of sentencing at the probation revocation hearing. Additionally, in State v. Beatty, No. 102,725, 2010 WL 5490732, at *4–5 (Kan.App.2010) (unpublished opinion), this court held that because the defendant was present at his original sentencing, the trial court did not err in ordering him to “serve his sentence imposed” at his probation revocation hearing. And finally, in State v. Dickey, No. 110,325, 2014 WL 4081937, at *3–4 (Kan.App.2014) (unpublished opinion), this court held that the trial court did not err in ordering the defendant to serve his underlying sentences after revoking his probation without apparently knowing or explicitly pronouncing the length of those underlying sentences.
Based on those cases, we conclude that the trial court did not err in failing to orally pronounce Orozco's sentence at his revocation hearing. It is clear from the record that the trial court granted the State's request to revoke Orozco's probation and ordered him to serve his original sentences. We also note that there is nothing in the plain statutory language to suggest that the trial court must orally pronounce the sentence upon revoking a defendant's probation. Thus, Orozco's argument fails. Did the Trial Court Lack Jurisdiction to Revoke Both of Orozco's Terms of Probation, Including One Term That Had Not Started?
Next, Orozco argues that the trial court lacked jurisdiction to revoke his second term of probation because that term had not begun. Orozco contends that he only violated the terms of his first probation term and that this court should remand this case with instructions for the trial court to reinstate his probation in his second case.
An appellate court has unlimited review when determining whether a sentencing order revoking two consecutive terms of probation was lawful. State v. Hilton, 49 Kan.App.2d 586, 589, 311 P.3d 1161 (2013), petition for rev. granted October 31, 2014); see also State v. Ross, 295 Kan. 1126, 1130–31, 289 P.3d 76 (2012).
The only case directly on point with this issue is Hilton. The parties dispute whether Hilton was correctly decided and whether it should be followed in this case. Specifically, Orozco argues that the Hilton court improperly legislated from the bench.
In Hilton, this court held that a trial court has the inherent authority to revoke a defendant's probation for violations that occur before probation starts. As in our case, the defendant in Hilton was sentenced to two consecutive 12–month probation terms with consecutive underlying sentences. 49 Kan.App.2d at 588. After violating the terms of her probation during the first 12–month term, the trial court revoked the defendant's probation in both cases and ordered her to serve both underlying sentences. 49 Kan.App.2d at 588–89. Similar to our case, the defendant in Hilton appealed, arguing that the trial court could not revoke the second term of probation because it had not started when she violated the terms of her first probation term.
The Hilton court reviewed all applicable Kansas statutes and decisions from other states on the issue because this was an issue of first impression. The Hilton court ultimately held that the statutory language was not determinative because, as found in other states, “the district court has the inherent power to revoke an order of probation—even though the probation period has not yet begun—if the defendant has committed misconduct after entry of the order granting probation.” 49 Kan.App.2d at 590. The court explained that “[c]ommon sense and public-policy considerations both urge that the trial court should be able to revoke a probation that has been granted—even if it has not yet begun—if the defendant's conduct calls for revocation.” 49 Kan.App.2d at 593.
Because the Hilton case is directly on point with the issue in this case, we adopt the Hilton analysis. The misconduct at issue here—Orozco's failure to report, failure to submit UAs, and testing positive for drugs—was contrary to the terms of his current probation. Orozco does not argue that this misconduct was insufficient to justify the revocation of his probation; he simply argues that the second probation term should not have been revoked because it had not started. Nevertheless, based on Hilton, we reject this argument and affirm.
Affirmed.