Opinion
No. 106,896.
2012-07-27
STATE of Kansas, Appellee, v. Cody L. ALLEN, Appellant.
Appeal from Kingman District Court; Larry T. Solomon, Judge.
Submitted by the parties for summary disposition pursuant to K.S.A. 21–4721(g) and (h).
Before McANANY, P.J., HILL, J. and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Cody L. Allen appeals the district court's revocation of his probation and order that he serve his underlying sentence. We granted Allen's motion for summary disposition in lieu of briefs under Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 60). After reviewing the record, we conclude there was no abuse of discretion by the district court and affirm its decision.
Allen pled guilty to one count of indecent solicitation of a child in violation of K.S.A. 21–3510. The district court sentenced Allen to 18 months' imprisonment, suspended the sentence, and ordered him to serve 24 months' probation under the supervision of community corrections and to comply with various conditions of probation.
The State asked to revoke Allen's probation because he had violated the terms of his probation by failing to complete 50 hours of community service, admitting to consuming alcohol, having unsupervised contact with a 15–year–old female, being released unsuccessfully from outpatient substance abuse treatment, and failing to obtain treatment for appropriately relating to the opposite sex.
Allen stipulated to the allegations made by the State. Based on that stipulation, the court found that Allen had violated the terms of his probation. Therefore, the court revoked probation and ordered that Allen serve his original sentence.
On appeal, Allen claims the district court abused its discretion in revoking probation and ordering him to serve his underlying sentence. Allen offers no argument to support his position, but simply cites case law indicating it is possible for the district court to abuse its discretion in revoking probation.
Probation 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, Allen clearly stipulated to violating several conditions of his probation. At the revocation hearing, Allen acknowledged he had completed only 10 of the required 50 community service hours, he had 2 beers at a party, and he did not complete drug and alcohol treatment within the required timeframe.
In deciding to revoke probation, the district court noted it had focused on Allen's need to deal with properly relating to minors and persons of the opposite sex. The court said it wanted Allen to get treatment for this, noting that Allen was prohibited from having contact with minor females. In light of this, the court opined that Allen's probation violations were “the most serious” he could think of—other than if Allen had engaged in actual sexual contact with a minor female. The court also observed that his order for Allen to complete 50 hours of community service was “in black and white,” noting Allen had initialed this requirement. The court said it saw no effort on behalf of Allen to comply with the probation order and found his contact with an underage female “most disturbing.”
After carefully reviewing the record of the revocation proceedings, we find no evidence of arbitrary or unreasonable judicial action and, therefore, decline to find the district court abused its discretion in revoking Allen's probation.
We affirm the ruling of the district court revoking Allen's probation.