Opinion
No. 106,266 106,267 and 106,268.
2012-07-13
STATE of Kansas, Appellee, v. Leon KENDREX, Appellant.
Appeal from Montgomery District Court; Gary R. House, 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.
Leon K. Kendrex appeals the district court's revocation of his probation, arguing that the district court abused its discretion by not adequately considering his circumstances. Kendrex also attempts to challenge his underlying sentence. We granted Kendrex'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. We also conclude Kendrex's attempted challenge to his underlying sentence is untimely and must be dismissed.
In March 2010, Kendrex pled no contest to two counts of attempted aggravated escape, severity level 10 nonperson felonies, and one count of attempted failure to register, a severity level 7 person felony. The district court then sentenced him to a controlling term of 24 months' incarceration, but granted probation for 24 months.
In January 2011, the State filed a motion to revoke Kendrex' probation, alleging a host of probation violations, including failure to report, failure to avoid injurious and vicious habits, failure to notify his ISO of an address change, failure to work faithfully at suitable employment, and others. Kendrex stipulated to some of the probation violations but sought reinstatement of probation. The State requested that probation be revoked and that Kendrex be ordered to serve his underlying sentence.
After hearing from Kendrex and his counsel, the district court stated that Kendrex had “Haunted” the terms of his probation in failing to do what community corrections told him to do, and that the court needed to “stand by” its announcement to revoke his probation.
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 district court, then it cannot be said that the district 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 Kendrex's probation. He had received a suspension from his sentence and was granted 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 Kendrex's probation and ordering him to serve the balance of his sentence.
Kendrex's attempted challenge to his underlying sentence is untimely and must be dismissed. See State v. Wendler, 280 Kan. 753, Syl. ¶ 1, 126 P.3d 1124 (2006).
Affirmed in part and dismissed in part.