Opinion
No. 106,667.
2012-06-29
STATE of Kansas, Appellee, v. Thomas Lynn COLE, Appellant.
Appeal from Seward District Court; Clint B. Peterson, Judge.
Submitted for summary disposition pursuant to K.S.A. 21–4721(g) and (h).
Before GREENE, C.J., McANANY and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Thomas Lynn Cole appeals the district court's revocation of his probation, arguing that the district court abused its discretion by not adequately considering his circumstances. We granted Cole's motion for summary disposition of a sentencing appeal pursuant to K.S.A. 21–4721(g) and (h) and Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 59). We conclude there was no abuse of discretion and thus affirm the district court's revocation of probation.
In July 2009, Cole pled no contest to two counts of possession of cocaine, severity level 4 drug felonies, and one count of failure to affix a drug tax stamp, a severity level 10 nonperson felony, in exchange for the dismissal of other counts. The district court then sentenced him to a controlling term of 28 months' incarceration with 12 months' postrelease, but granted probation for 18 months with mandatory drug treatment.
In late December 2010, the State filed a motion to revoke Cole's probation, alleging failure to report and failure to refrain from consuming or possessing illegal drugs. Cole stipulated to the probation violations but sought reinstatement and treatment in a more suitable program. The State requested that probation be revoked and that Cole be ordered to serve his underlying sentence.
After hearing from Cole and his counsel, the district court stated that Cole had been given his “second chance” when he was granted probation, and that he had now failed that chance. The court concluded that probation should be revoked and imposed the original sentence.
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). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. 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. State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
We conclude that the record on appeal clearly supports the district court's decision to revoke Cole's probation. Cole had received a favorable plea agreement and a suspension from his sentence for probation, but he failed to take advantage of this opportunity. We cannot say that no reasonable person would take the view adopted by the district court. The district court did not abuse its discretion by revoking Cole's probation and ordering him to serve the balance of his sentence.
Affirmed.