State v. Lowden

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NOT DESIGNATED FOR PUBLICATION

No. 112,595

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RHONDA M. LOWDEN,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed November 20,
2015. Affirmed.

Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before ATCHESON, P.J., SCHROEDER, J., and HEBERT, S.J.

Per Curiam: Defendant Rhonda M. Lowden appeals the decision of the Sedgwick
County District Court to revoke her probation for felony theft as an abuse of discretion
even though she committed an additional theft and used cocaine shortly after being
placed on probation. We find no error and affirm.

In March 2014, Lowden pleaded guilty to one count of theft after a prior
conviction, a level 9 nonperson felony in violation of K.S.A. 2014 Supp. 21-5801(a)(1),
(b)(6). She ultimately received a sentence of 9 months in prison with 12 months of
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postrelease supervision and was placed on probation for 12 months. Less than a month
after the sentencing hearing, the district court issued a warrant for Lowden for violating
the terms of her probation by: (1) committing a new felony theft on June 15, 2014; (2)
testing positive for and admitting using cocaine; (3) failing to complete a drug and
alcohol evaluation; (4) failing to complete a class for offenders committing thefts; and (5)
failing to perform community service as directed.

At the revocation hearing in August 2014, Lowden admitted the violations and
asked for reinstatement to probation because she had ongoing mental health conditions
related to domestic abuse when she was younger and problems with the medication she
had been taking to treat those conditions. Lowden told the district court she had secured
employment and would not again violate the terms of probation because her medications
had been adjusted and she was continuing in counseling. Her lawyer suggested one of the
ways Lowden's mental health issues manifest themselves is a compulsion to steal, but
nothing in the record supports that assertion.

The district court cited Lowden's extended criminal history of theft and forgery
convictions and her commission of a theft after she had been placed on probation in this
case. The new theft charge was one of four filed against Lowden after she received
probation. The district court also expressed concern over Lowden's drug use. Based on
the overall circumstances, the district court declined to reinstate probation and ordered
Lowden to serve the underlying prison sentence. Lowden has appealed.

For her sole point on appeal, Lowden argues the district court should have
reinstated her to probation. Probation from serving a sentence of incarceration is an act of
unfettered leniency by the sentencing judge. Unless expressly required by law, probation
is, therefore, a privilege and not a right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634
(2006). Once the State has proved a violation of the conditions of probation, the district
court acts within its discretion in deciding whether to revoke that privilege. State v.
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Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). In turn, a district court exceeds that
discretion if it rules in a way no reasonable judicial officer would under the
circumstances, if it ignores controlling facts or relies on unproven factual representations,
or if it acts outside the legal framework appropriate to the issue. See Northern Natural
Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied
134 S. Ct. 162 (2013); State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert.
denied 132 S. Ct. 1594 (2012).

The record on appeal shows that the district court understood the factual
circumstances pertaining to Lowden. Lowden doesn't argue the district court stepped
outside the governing legal principles. Rather, she contends the decision to revoke her
probation was so unreasonable that no other district court would have come to the same
conclusion on comparable facts. We cannot agree with that proposition. On appeal,
Lowden points out this was her first probation violation in this case. But the violation
consisted of multiple failures to comply with the conditions of probation. Given
Lowden's criminal history and, in particular, her commission of additional crimes within
weeks after being placed on probation, we safely conclude other judges would have
revoked probation notwithstanding Lowden's mental health issues and her personal
request for another chance to stay out of prison.

Affirmed.