Opinion
No. 108,172.
2013-01-4
STATE of Kansas, Appellee, v. John C. ANDERSON, Appellant.
Appeal from Atchison District Court; Martin J. Asher, Judge.
Submitted for summary disposition pursuant to K.S.A.2011 Supp. 21–6820(g) and(h).
Before MALONE, C.J., BRUNS, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
John Carl Anderson appeals the district court's decision revoking his probation and ordering him to serve his underlying sentence. We granted Anderson's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 59). The State filed no response.
On July 13, 2011, Anderson pled guilty to possession of methamphetamine, possession of marijuana, reckless driving, and speeding. On August 29, 2011, the district court imposed a controlling sentence of 11 months' imprisonment and placed Anderson on probation for 18 months with community corrections with the condition that he receive drug treatment.
On January 27, 2012, Anderson's probation was revoked and reinstated. On April 6, 2012, an affidavit was filed alleging that Anderson was in violation of his probation by failing to complete drug treatment and by failing to make payments on his case.
On April 23, 2012, the district court held a probation violation hearing. At the hearing, Anderson admitted to violating his probation by signing himself out of drug treatment. Anderson asked to be reinstated to probation, acknowledging that he had “messed up” and that he wanted back into drug treatment. Anderson's supervisor stated to the court that Anderson had been sent to two different drug treatment facilities. The district court revoked Anderson's probation and ordered him to serve his underlying sentence. Anderson timely appealed.
On appeal, Anderson claims the district court erred by revoking his probation and ordering him to serve his underlying sentence. Anderson acknowledges that the decision to revoke probation is within the sound discretion of the district court.
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 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, Anderson stipulated to violating his probation by failing to complete drug treatment. The record indicates that Anderson had twice failed to complete this basic condition of probation. Based upon the record on appeal, the district court's decision to revoke Anderson's probation was not arbitrary, fanciful, or unreasonable. We conclude the district court did not abuse its discretion by revoking Anderson's probation and ordering him to serve his underlying sentence.
Affirmed.