State v. Jacobson

860 P.2d 47, 18 Kan. App. 2d 788, 1993 Kan. App. LEXIS 111
CourtCourt of Appeals of Kansas
DecidedSeptember 24, 1993
DocketNo. 68,549
StatusPublished
Cited by2 cases

This text of 860 P.2d 47 (State v. Jacobson) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Jacobson, 860 P.2d 47, 18 Kan. App. 2d 788, 1993 Kan. App. LEXIS 111 (kanctapp 1993).

Opinions

Pierron, J.:

The defendant, Luis Jacobson, was charged in a four-count complaint/information with two counts of burglary, a class E felony under K.S.A. 1992 Supp. 21-3715(2); one count of felony theft, a class E felony under K.S.A. 21-3701(a); and one count of misdemeanor theft, a class A misdemeanor under K.S.A. 21-3701(a).

The defendant entered into a plea agreement with the State where, in exchange for his pleading guilty as charged, the State agreed to recommend a minimum sentence on each count, that all counts run concurrently with each other, and that probation be granted for the confinement portion of the sentence.

During the hearing, the court explained to the defendant all of the rights he was giving up by entering his plea of guilty. The court advised that it was not bound by the plea agreement. The court then had the defendant provide a factual basis for his plea of guilty and inquired of counsel if there was any legal reason why the defendant’s plea should not be accepted.

The court then found that defendant had “[k]nowingly and understandably [sic] and intelligently waived his constitutional rights and entered this plea, and that there’s a factual basis for [789]*789the plea, and the Court firmly believes that the defendant understands the nature of the charges and the consequences of his plea.” The court then ordered a presentence investigation.

A sentencing hearing was held later at which time the court suspended imposition of sentence for a three-year period and assigned the defendant to the Sedgwick County Community Corrections Program. The defendant was required to abide by all rules, regulations, and requirements of the community corrections program. The court specifically noted at the sentencing hearing that it was a condition of the defendant’s suspended sentence that he “comply with all of the community corrections demands made.”

The defendant later filed a “motion to modify term and conditions of probation” in which he requested he be taken out of community corrections and placed on a home arrest electronic monitoring system. At the conclusion of the hearing on the motion, the court denied the defendant’s motion.

Shortly thereafter, community corrections filed a warrant alleging the defendant had violated the terms and conditions of his supervision by not attending required Alcoholics Anonymous (AA) meetings. A hearing was held on these allegations, and the defendant admitted he missed one required AA meeting. The defendant proceeded to argue the violation was minor in nature, he had missed the meeting for good cause, and he should be allowed to remain in the community corrections program. A representative from community corrections advised the court the defendant had originally been placed in the nonresidential part of the program but was not able to successfully complete it. The representative further noted the defendant had been transferred to the residential facility but had remained in that facility and “wasn’t realh' working [in] his program.”

The court revoked the suspended sentence and imposed a sentence of 1-5 years on each of the burglary counts, 1-2 years on the felony theft count, and 6 months in the county jail on the misdemeanor theft count. The court ran the three felony counts consecutive to each other and ran the misdemeanor theft count concurrent with the felony counts for a controlling sentence of 3 to 12 years.

The court said:

[790]*790“As it’s well known, the Court doesn’t request or require . . . Community Corrections to take anybody back that they say they don’t want for violations . . . When they violate that intensive care officer, they’re violating my orders, and I don’t think that any agency working with defendant can let it be known through any violating defendant that you can get away with it.”

The court also said:

“This is another case . . . that there’s nobody that can be blamed other than the defendant for his actions anyhow. ... I don’t know of anything else to do with this defendant. Probation certainly is not the answer. . . I’ve considered all the factors in 4606. As I said, I can find nothing that anyone else can be blamed.”

The State Reception and Diagnostic Center (SRDC) report noted the defendant tended to project blame onto others and showed minimal evidence of remorse and “limited acceptance of self-blame.” The report stated: “The team recommends consideration be given to placement within Labette County Conservation Camp in lieu of incarceration; however, if this is not an appropriate option, as deemed by the court, incarceration is recommended.”

The defendant filed a motion to modify sentence. The trial court denied the defendant’s motion to modify.

The defendant timely appealed.

The defendant contends the district court abused its discretion when it revoked his suspended sentence, sentenced him, and refused to modify the sentence. We disagree.

The defendant failed in his community corrections placement. Although the trial court required him to hew close to the line, the requirements were reasonable. A fair reading of the record is that the defendant was not successfully completing his placement, although his rule violations were not major.

The SRDC report recommended that consideration be given to placement at the Labette County facility but further stated if that was not considered an appropriate option by the court, incarceration was recommended. This certainly is not the unequivocal recommendation required under State v. Moon, 15 Kan. App. 2d 4, 801 P.2d 59 (1990), rev. denied 248 Kan. 998 (1991).

The burden of showing abuse of discretion is on the defendant.

[791]*791“One who asserts that the court has abused its discretion bears the burden of showing such abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. Stated another way, discretion is abused only where no reasonable pei-son would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. [Citation omitted.]” State v. Heywood, 245 Kan. 615, 621, 783 P.2d 890 (1989).

Based on the record, we find no abuse of discretion.

At the approximate time for submission of briefs in this matter, State v. Richard, 252 Kan. 872, 850 P.2d 844 (1993), and State v. Morse, 18 Kan. App. 2d 268, 855 P.2d 87 (1993), were announced. Because of the possible applicability of these two cases to the facts of the instant case, we asked for additional briefing to address them.

In Morse,

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Related

Thompson v. State
96 P.3d 1115 (Court of Appeals of Kansas, 2004)
State v. Heffelman
886 P.2d 823 (Supreme Court of Kansas, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
860 P.2d 47, 18 Kan. App. 2d 788, 1993 Kan. App. LEXIS 111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jacobson-kanctapp-1993.