Opinion
Nos. 108,211 108,212 108,213 108,214.
2013-11-4
STATE of Kansas, Appellee, v. Shawn Michael PREECE, Appellant.
Appeal from Geary District Court; Steven L. Hornbaker, Judge. Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Steven L. Opat, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Geary District Court; Steven L. Hornbaker, Judge.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Steven L. Opat, county attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., HILL, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
In this appeal, Shawn Preece contends the district court should not have sent him to prison just because he violated some of the conditions of his probation. Our review of the record reveals that the district court exercised great restraint in revoking Preece's probation, doing so only after reinstating his probation at least one time before. We see no abuse of discretion and affirm.
All of Preece's convictions arose in Geary County. In one case, Preece pled no contest to one count of theft and in a second case, no contest to one count of identity theft and one count of perjury. The district court imposed a prison sentence, suspended the incarceration component of the sentence, and placed Preece on probation. Later, Preece pled guilty to charges of aggravated failure to appear. For those convictions, the district court again suspended the underlying prison sentence and placed Preece on probation.
The court revoked and reinstated Preece's probation in 2011. Then, in 2012, his probation officer filed an affidavit claiming Preece had again violated probation—specifically for failing to remain drug free, failing to make monthly payments as ordered, and failing to complete community service. After an evidentiary hearing, the district court revoked Preece's probation in each of his criminal cases and ordered that he serve his prison sentence of 40 months with credit for jail time. The district court specifically relied upon evidence that Preece had violated the terms of his probation by continuing to use marijuana and methamphetamine.
Probation instead of incarceration, unless otherwise required by law, is granted as a privilege, not as a matter of right. See State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once there has been evidence of a violation of the conditions of probation, revocation is in the sound discretion of the district court. State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 44, 59 P.3d 1003 (2002).
There is ample evidence in this record that demonstrates Preece violated his probation conditions. Preece's probation officer indicated Preece had failed three drug tests—testing positive for marijuana and meth. The officer stated she did not believe Preece was amendable to probation because he had made no efforts to complete probation and had numerous violations. In revoking probation and ordering Preece to serve his sentence, the district court commented that Preece had committed 53 crimes since 1990 and had “several motions to revoke.” The court noted that Preece had violated probation by continuing to use marijuana and methamphetamine, and Preece had not earned the privilege of probation at that point.
We cannot say the district court abused its discretion in ruling as it did. Although the district court's basis for revoking probation was Preece's continued drug use, the record indicates Preece violated several conditions of his probation. In addition, Preece's claim that drug treatment would have offered better results and been more effective is pure speculation. The evidence supports the district court's finding that Preece violated the conditions of probation by using drugs. The district court did not abuse its discretion in revoking probation and ordering Preece to serve his underlying sentence in these circumstances.
Affirmed.