Opinion
112,809.
05-22-2015
STATE of Kansas, Appellee, v. Jenea RICHARDSON, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Jenea K. Richardson appeals the district court's decision revoking her probation and ordering her to serve a modified prison sentence. We granted Richardson's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041 A (2014 Kan. Ct. R. Annot. 66). The State filed a response and requested that the district court's judgment be affirmed.
On November 19, 2012, Richardson pled guilty to one count each of aggravated burglary, theft, and aggravated battery. On January 8, 2013, the district court imposed a controlling sentence of 56 months' imprisonment but granted a dispositional departure to probation with community corrections for 36 months. Richardson did not appeal her sentence.
On June 7, 2013, the State filed a probation violation warrant alleging that Richardson had violated her probation on numerous grounds, including the use of drugs. At a hearing on July 17, 2013, Richardson stipulated to the violations and the district court extended her probation for 36 months from the date of the hearing.
On February 4, 2014, the State filed a second probation violation warrant alleging that Richardson had violated her probation on numerous grounds, including the use of drugs. At a hearing on February 24, 2014, Richardson stipulated to the probation violations. Richardson asked for reinstatement to probation, arguing that she needed additional treatment for an ongoing drug problem. The district court expressed concern over Richardson's continued drug usage while she was pregnant. The district court revoked Richardson's probation and ordered her to serve a modified sentence of 43 months' imprisonment. Richardson timely appealed her probation revocation.
On appeal, Richardson contends the district court erred in revoking her probation and ordering her to serve a modified prison sentence. Richardson acknowledges that the decision to revoke probation rests within the district court's sound discretion.
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 gave Richardson an opportunity to stay out of prison by granting a dispositional departure to probation. The district court extended the probation on Richardson's first violation. When Richardson violated probation for the second time by continuing to use drugs while she was pregnant, the district court revoked probation and ordered her to serve a modified prison sentence. The district court's decision to revoke Richardson'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 Richardson's probation and ordering her to serve a modified prison sentence.
Affirmed.