State v. Tague

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NOT DESIGNATED FOR PUBLICATION

Nos. 113,886
113,887

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JIMMY TAGUE,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed December 23,
2015. Affirmed in part and dismissed in part.

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

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

Per Curiam: Jimmy L. Tague appeals the district court's decision revoking his
probation in one case and denying his motion for a dispositional departure in another
case. We granted Tague's motion for summary disposition in lieu of briefs pursuant to
Supreme Court Rule 7.041A (2015 Kan. Ct. R. Annot. 67). The State has filed a response
and requested that the district court's judgment be affirmed.

In 13CR778, Tague pled guilty to an offender registration violation. The district
court sentenced Tague to 27 months' imprisonment but granted a dispositional departure
to probation with community corrections for 24 months.

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In 14CR2551, Tague again pled guilty to an offender registration violation and
admitted to violating his probation in 13CR778 by failing to register. Tague requested the
district court to reinstate his probation in 13CR778 and grant him a dispositional
departure to probation in 14CR2551. The district court denied Tague's request, revoked
his probation in 13CR778, and sentenced him to 34 months' imprisonment in 14CR2551.
Tague appealed. The cases have been consolidated on appeal.

Tague first claims that the district court erred in revoking his probation in
13CR778. Tague explains that the reason he failed to register is because he was
homeless, which made it difficult for him to find a place to live, and then register his
change of address. Tague also explains that although he was discharged from the New
Beginnings program for smoking cigarettes, the program was willing to accept him back.

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).

Here, the district court initially showed leniency in 13CR778 by granting Tague a
dispositional departure to probation. Tague failed to take advantage of this opportunity by
again failing to register which constituted a new felony while on probation. As Tague
acknowledges, 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
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without imposing an intermediate sanction. The district court's decision to revoke Tague'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 Tague's probation in 13CR778 and ordering him
to serve his underlying prison sentence.

Tague also claims that the district court erred in denying his motion for a
dispositional departure in 14CR2551. But as Tague acknowledges, appellate courts are
without jurisdiction to consider appeals from a sentence entered for a felony committed
on or after July 1, 1993, where the imposed sentence is within the presumptive sentence
for the crime. See K.S.A. 2014 Supp. 21-6820(c)(1); State v. Myers, 20 Kan. App. 2d
401, Syl. ¶ 1, 888 P.2d 866 (1995). Thus, this court lacks jurisdiction to consider Tague's
appeal of his presumptive sentence in 14CR2551.

Finally, Tague contends that the district court violated his constitutional rights
under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d (2000), by
using his prior criminal history to increase his sentence without proving the criminal
history to a jury beyond a reasonable doubt. We lack jurisdiction to consider this claim in
13CR778 because Tague did not timely appeal his sentence in that case. See K.S.A. 2014
Supp. 22-3608(c) (defendant shall have 14 days after the judgment of the district court to
appeal); State v. Inkelaar, 38 Kan. App. 2d 312, 317-18, 164 P.3d 844 (2007), rev. denied
286 Kan. 1183 (2008) (defendant's notice of appeal was timely only as to his probation
revocation and not as to his original sentence). Even if we had jurisdiction to review
Tague's presumptive sentence in 14CR2551, our Supreme Court has rejected this claim in
State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). The Court of Appeals is duty bound to
follow Kansas Supreme Court precedent, absent some indication the Supreme Court is
departing from its previous position. State v. Belone, 51 Kan. App. 2d 179, 211, 343 P.3d
128, rev. denied 302 Kan. ___ (September 14, 2015). There is no indication that our
Supreme Court is departing from its position in Ivory.
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Affirmed in part and dismissed in part.