Opinion
No. 108,956.
2013-07-12
STATE of Kansas, Appellee, v. Gary L. EASTER, Appellant.
Appeal from Sedgwick District Court; David J. Kaufman, Judge.
Submitted for summary disposition pursuant to K.S.A. 21–6820.
Before BRUNS, P.J., McANANY and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Gary L. Easter appeals the district court's revocation of his probation and order he serve his underlying sentences. We granted Easter's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2012 Kan. Ct. R. Annot. 62). Finding no abuse of discretion, we affirm the district court's decision.
Facts
On October 6, 2011, Easter pled guilty to three counts of possession of controlled substances (cocaine, methamphetamine, and marijuana) and one count each of possession of paraphernalia for use and failure to stop. Under the terms of a plea agreement he was placed on 12 months' probation with an underlying prison term of 41 months with 12 months' postrelease supervision. Easter's probation order is not included in the record on appeal, but the violation of probation warrant states the terms of probation he was to follow and asserts he violated numerous conditions of probation including failed drug tests, failure to complete drug/alcohol treatment, and had new charges of altered driver's license, driving after driver's license suspended, and criminal deprivation of a motor vehicle.
Easter stipulated to the violations, but argued that his arrest had prevented him from completing the outpatient treatment program. The district court found Easter in violation of the terms of his probation and revoked his probation. Easter timely appeals.
Analysis
In his motion for summary disposition, Easter argues the district court abused its discretion by revoking his probation and failing to recognize relapse is part of drug addiction. He also implicitly argues the district court should have been lenient because his conviction for criminal deprivation involved using his mother's car.
Probation from serving the sentence imposed by the sentencing judge, 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).
Here, Easter admitted to violations of his probation but he argued relapse was an inevitable feature of his drug addiction and the district court should be considerate of his setbacks. Instead, the district court found his relapse was a feature of failing to meet the terms of his probation conditions, giving due consideration to his prior criminal record. The district court, in revoking his probation, addressed Easter as follows:
“The Court: As I started to say earlier, if this was a case where there's two, three, four priors, it would be a lot easier to work with a defendant than it is with 19 prior felony convictions. At some point your record gets to be so bad that the Court should say we're not going to work with you anymore. Every time you come to Court you're going to go to prison. Every single time. There is no probations anymore [ sic ]. You're just always going to go to prison. Because that's what the State law says, that you're a presumptive imprisonment category on this case. And they say we aren't even supposed to be working with you. We're supposed to send you to prison. But on special findings you can get a chance to probation and that's what Judge Kaufman made, is a special finding, and said that a treatment program is available for you. But you got a dirty UA before that happened.
“Well, I am going to revoke the probation that was previously granted. I think the defendant's prior criminal history is just—makes it way too risky to have another opportunity on probation. I will order the defendant serve the balance of his sentence.”
The district court's decision to revoke Easter's probation was not arbitrary, fanciful, or unreasonable. The district court did not abuse its discretion by revoking his probation and ordering him to serve his underlying sentences.
Affirmed.