Opinion
No. 106,832.
2012-07-13
STATE of Kansas, Appellee, v. Paul G. ALLEN, Appellant,
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Submitted for summary disposition pursuant to K.S.A. 21–4721(g) and (h).
Before GREENE, C.J., McANANY and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Paul G. Allen appeals the district court's revocation of his probation, arguing that the district court abused its discretion by not adequately considering his circumstances. We granted Allen's motion for summary disposition of a sentencing appeal pursuant to K.S.A. 21–4721(g) and (h) and Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 59). We conclude there was no abuse of discretion and thus affirm the district court's revocation of probation.
In September 2010, Allen pled no contest to attempted offender registration, a severity level 7 person felony. The district court then sentenced him to a controlling term of 30 months' incarceration with 12 months' postrelease, but granted probation for 24 months.
In March 2011, the State filed a motion to revoke Allen's probation, alleging unsuccessful discharge from drug and alcohol treatment. Allen stipulated to the probation violation but sought reinstatement and continued treatment. The district court granted reinstatement of probation.
In August 2011, the district court conducted a hearing on the State's motion to revoke probation, this time alleging that Allen had tested positive for methamphetamine; tested positive for marijuana; failed to attend drug and alcohol treatment as directed; and committed the crimes of possession of methamphetamine, possession of marijuana, possession of drug paraphernalia, driving while suspended, no tax stamp, and a traffic violation. Allen sought reinstatement and intensive inpatient treatment; the State requested an order for Allen to serve his underlying sentence.
After hearing from Allen and his counsel, the district court stated that Allen had his “second chance” when he was granted reinstatement of probation in April, and that he had now failed that chance. The court concluded that his probation should be revoked.
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). 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).
We conclude that the record on appeal clearly supports the district court's decision to revoke Allen's probation. He had received a favorable plea agreement and a departure to probation, followed by a reinstatement upon the first allegations of probation violations, but he failed to take advantage of this opportunity. We cannot say that no reasonable person would take the view adopted by the district court. The district court did not abuse its discretion by revoking Allen's probation and ordering him to serve the balance of his sentence.
Affirmed.