Opinion
No. 109,594.
2013-11-22
STATE of Kansas, Appellee, v. Jesse BASS, Appellant.
Appeal from Sedgwick District Court; Jeff Goering, Judge.
Submitted for summary disposition pursuant to K.S.A.2012 Supp. 21–6820(g) and (h).
Before MALONE, C.J., GREEN and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jesse Bass appeals the district court's decision revoking his probation and ordering him to serve his underlying sentences in two cases that were consolidated in district court. We granted Bass' motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2012 Kan. Ct. R. Annot. 62). The State filed a response and joined in Bass' motion for summary disposition.
On December 31, 2009, in case 09CR3996, the State charged Bass with one count of possession of methamphetamine and one count of failure to affix the appropriate tax stamps. On July 8, 2011, in case 11CR1979, the State charged Bass with one count of possession of oxycodone, one count of possession of alprazolam, one count of possession of marijuana, and one count of possession of drug paraphernalia for use. The district court later consolidated the two cases.
On July 25, 2011, pursuant to a plea agreement, Bass pled guilty as charged in each case. On September 8, 2011, the district court sentenced Bass in 09CR3996 to 10 months' imprisonment for possession of methamphetamine and 5 months' imprisonment for failure to affix tax stamp, to run concurrent. In 11CR1979, the district court sentenced Bass to 10 months' imprisonment for possession of oxycodone and 10 months in jail for each of the remaining counts. The district court ordered the sentences in 11CR1979 to run concurrently to each other but consecutive to the sentences in 09CR3996, for a controlling term of 20 months' imprisonment. The district court placed Bass on probation with community corrections in each case for 12 months and ordered him to complete drug treatment.
On four separate occasions in 2012, the district court signed an arrest warrant in which Bass' intensive supervision officer (ISO) alleged that Bass had violated the terms of his probation by testing positive for methamphetamine or by failing to attend drug and alcohol treatment. For each warrant, Bass admitted the allegations and the district court revoked and reinstated his probation.
On October 19, 2012, the district court signed an arrest warrant in which Bass' ISO stated that Bass had violated the terms of his probation by submitting a urine sample that contained methamphetamine. On October 26, 2012, the district court held a fifth probation violation hearing, at which Bass waived his right to an evidentiary hearing and admitted the alleged violation. The district court found that Bass had violated his probation, revoked probation, and ordered him to serve his original sentences. Bass timely appealed the revocation of his probation.
On appeal, Bass argues that the district court erred in revoking his probation and ordering him to serve his underlying sentences. Bass contends that he consumed the methamphetamine that showed up in his test results in October 2012 while he was confined in jail and that he had been doing well on probation since leaving jail.
“Probation from serving a sentence under Kansas law is generally considered ‘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.’ [Citation omitted.]” State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once the State has established a violation of probation conditions, the decision to revoke lies within the sound discretion of the district court. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). In the instant case, Bass admitted that he violated the conditions of his probation; thus, the only question left is whether the decision to revoke was an abuse of discretion. A judge abuses his or her discretion if the judicial action is (1) arbitrary, fanciful, or unreasonable; (2) based upon an error of law; or (3) based upon an error of fact. State v. Randolph, 297 Kan. 320, 336, 301 P.3d 300 (2013).
Here, Bass admitted at five different hearings that he violated the conditions of his probation. The district court allowed Bass multiple opportunities to successfully follow the conditions of his probation, but he repeatedly failed to do so. The district court's revocation of probation was not arbitrary, fanciful, or unreasonable, nor was it based upon an error of law or fact. Accordingly, the district court did not abuse its discretion in revoking Bass' probation and ordering him to serve the underlying sentences.
Affirmed.