Opinion
Nos. 111,858 111,859.
2014-12-24
STATE of Kansas, Appellee, v. Bradley R. BARNETT, Appellant.
Appeal from Sedgwick District Court; J. Patrick Walters, judge.
Submitted for summary disposition pursuant to K.S.A.2013 Supp. 21–6820(g) and (h).
Before MALONE, C.J., GREEN and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Bradley R. Barnett appeals the district court's decision revoking his probation and ordering him to serve his underlying sentence. We granted Barnett's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 66). The State filed a response and requested that the district court's judgment be affirmed.
On August 22, 2012, Barnett pled no contest to one count of domestic battery in two consolidated cases. On September 21, 2012, the district court sentenced Barnett to a controlling term of 12 months in jail but placed him on probation with community corrections for 12 months. Barnett did not appeal his original sentence.
On January 24, 2013, the district court revoked and reinstated Barnett's probation and imposed a 60–day jail sanction. On May 5, 2013, the district court again revoked and reinstated Barnett's probation and ordered that he obtain a mental health evaluation. On September 18, 2013, Barnett admitted to violating his probation by failing to refrain from alcohol as directed. The district court revoked Barnett's probation and ordered him to serve the balance of his sentence. Barnett timely appealed.
On appeal, Barnett alleges that the district court erred by imposing the underlying sentence because there were sufficient mitigating factors to outweigh the probation violation. Barnett notes that although he admitted to violating his probation, he had placed himself in treatment and had shown success in avoiding people who would interfere with his sobriety.
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). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). The party asserting the district court abused its discretion bears the burden of showing such abuse of discretion. State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).
Barnett was convicted of domestic battery in two consolidated cases. His probation was revoked and reinstated on two prior occasions before the district court finally ordered Barnett to serve his underlying sentence. Although Barnett had some success on probation, he failed to satisfy all the conditions of the district court's supervision. Based on the record, the district court's decision to revoke Barnett's probation was not arbitrary, fanciful, or unreasonable, and the decision was not based on an error of law or fact. See Ward, 292 Kan. at 550. Thus, we conclude the district court did not abuse its discretion in revoking Barnett's probation and ordering him to serve his underlying sentence.
Affirmed.