Opinion
No. 106,987.
2012-10-5
STATE of Kansas, Appellee, v. Jerome Arthur SISK, Appellant.
Appeal from Finney District Court; Philip C. Vieux, Judge.
Submitted for summary disposition pursuant to K.S.A.2011 Supp. 21–6820(g) and (h).
Before BUSER, P.J., MALONE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jerome Arthur Sisk appeals the revocation of his probation in case No. 10 CR 634. We granted his motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 60). Because we find the district court did not abuse its discretion in revoking probation, the decision of the district court is affirmed.
Factual and Procedural History
In December 2010, Sisk was convicted of one count of distribution of methamphetamine and one count of unlawful acquisition of drug proceeds. The district court sentenced Sisk to 44 months' imprisonment on the first count and 11 months' imprisonment on the second count—for a total of 55 months' imprisonment (as the counts were to be served consecutively). However, the court suspended imprisonment and placed Sisk on probation for a period of 18 months on Count I and 12 months on Count II.
In order to successfully complete probation, Sisk was ordered to comply with various conditions. On April 13, 2011, an intensive supervision officer (ISO) for the State filed an affidavit in the district court claiming Sisk had violated the conditions of his probation by attempting to falsify his urine sample, admitting to cocaine use, failing to show up for a scheduled treatment session, and failing to show up for a scheduled office visit. The ISO moved the court for an order revoking Sisk's probation.
The district court held a hearing regarding the State's allegations. At this hearing, Sisk admitted to the allegations. Sisk's attorney asked the court to allow him to receive inpatient treatment for his serious drug problem in lieu of imprisonment. The district court denied Sisk's request and ordered that he serve his underlying prison sentence.
Analysis
On appeal, Sisk claims the district court “erred” in revoking probation. Sisk offers no argument as to why the district court “erred” in doing so and only makes this single conclusory claim.
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 trial 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).
In this case, Sisk clearly stipulated to violating various conditions of his probation. At his probation revocation hearing, the district court noted it had previously granted a departure sentence in the case—and that this act of grace was “totally snubbed” by Sisk. Noting Sisk attempted to use another person's urine for testing, used cocaine, and missed treatment sessions designed to help him, the court concluded it would reinstate the original sentence in order for the court to “have any credibility at all.” Notably, all of Sisk's probation violations occurred within a mere 2 months of him starting his probation program.
Having carefully reviewed the record of the revocation proceedings, we find no indication of arbitrary judicial action and decline to conclude there was any abuse of discretion in the district court's decision to revoke probation.
Affirmed.