Opinion
No. 106,559.
2012-06-8
STATE of Kansas, Appellee, v. Matthew BARNES, Appellant.
Appeal from Reno District Court; Trish Rose, Judge.
Submitted for summary disposition pursuant to K.S.A. 21–4721(g) and (h).
Before BUSER, P.J., ATCHESON, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Matthew Barnes contends the district court abused its discretion in revoking his probation and requiring that he serve the underlying sentence that had been imposed while in the custody of the Secretary of Corrections. Barnes' motion for summary disposition has been granted by this court. After reviewing the record on appeal, we affirm the judgment of the district court.
On January 6, 2009, Barnes pled guilty to multiple criminal offenses and was sentenced to 18 months' probation, with underlying consecutive terms of imprisonment totaling 84 months.
The State sought to revoke Barnes' probation on May 23, 2011, for possession of a firearm, failure to report to his intensive supervision officer, failure to complete the educational/community class as recommended in the drug and alcohol evaluation, and failure to provide verification of employment. On July 7, 2011, the State filed an amended motion to revoke alleging the additional probation violations of illegal activity, driving while suspended, failure to report police contact after an arrest, possession of synthetic marijuana, and possession of dangerous weapons—combat-type knives and a brass knuckles-type knife.
The district court held an evidentiary hearing over a 3–day period. After listening to multiple witnesses and considering all of the evidence presented, the district judge found:
“[Barnes] has violated the terms of his [probation] in the following ways: He failed to complete the educational community class that was required. He failed to provide verification of employment as required. Failed to report police contact after he was arrested.... He was in ... possession of synthetic marijuana, which is an illegal controlled substance. He was also in possession of dangerous weapons. I left the most serious allegation for last because I am finding that the State has met its burden of proving that [Barnes] was in possession of a firearm....
“... [T]here's been sufficient evidence that Mr. Barnes possessed a gun. That is the most serious probation allegation, short of harming someone, that could come before this Court. [Barnes] was a presumptive prison sentence. He was given the opportunity of Community Corrections by this Court.... The Community Corrections officer has testified that [Barnes] is not amenable to Community Corrections and Community Corrections is the best the State has for supervision. It is the most intensive kind of supervision, and if [Barnes] isn't amenable to that, then the only response I have is to order the sentence executed and that's what I'm ordering.”
The district court revoked Barnes's probation and ordered Barnes to serve his original sentences. Barnes timely appeals.
On appeal, Barnes alleges the district court erred in revoking his probation and reinstating his prison sentences. Probation from serving a sentence is “ ‘an act of grace by the sentencing judge and, unless otherwise required by law, is granted as a privilege and not as a matter of right.’ [Citations omitted.]” State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once the State has proven a violation of the conditions of 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. State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
On appeal, Barnes does not provide sufficient reason for us to conclude that the district court abused its discretion in revoking his probation. Given the number and seriousness of Barnes' probation violations, the record supports the district court's conclusion Barnes is not amenable to probation. Accordingly, we conclude the district court did not abuse its judicial discretion in revoking Barnes' probation and requiring him to serve the underlying sentence in the custody of the Secretary of Corrections.
Affirmed.