Opinion
111,711.
11-14-2014
STATE of Kansas, Appellee, v. Robert M. BEVINS, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Robert M. Bevins appeals the district court's decision revoking his probation in two separate cases and ordering him to serve his underlying prison sentences. We granted Bevins' motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2013 Kan. Ct. R. Annot. 63). The State filed a response and requested that the district court's judgment be affirmed.
In 09CR3G, Bevins pled no contest to one count of aggravated assault on a law enforcement officer. On December 23, 2009, the district court sentenced him to 20 months' imprisonment but granted probation with community corrections for 24 months. In 10CR83G, Bevins pled guilty to one count of possession of methamphetamine and one count of driving under the influence of alcohol or drugs, second offense. On June 1, 2011, the district court imposed a controlling sentence of 24 months' imprisonment but granted a disposition departure to probation with community corrections for 12 months.
On March 11, 2013, Bevins stipulated to violating the conditions of his probation. The district court imposed a 60–day jail sanction and reinstated Bevins' probation for 12 months. On January 24, 2014, Bevins again stipulated to violating the conditions of his probation for many reasons, including failing to report as directed and being unsuccessfully discharged from treatment. The district court determined that Bevins' welfare would not be served by another intermediate sanction or placement on probation. Accordingly, the district court revoked Bevins' probation and ordered him to serve his underlying prison sentence in each case. Bevins timely appealed.
On appeal, Bevins argues that the district court abused its discretion when it revoked his probation and imposed a prison sentence. Bevins acknowledges that once there has been a violation of probation, revocation 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). 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).
In revoking Bevins' probation, the district court found that Bevins' welfare would not be served by another intermediate sanction or placement on probation. Specifically, the judge stated:
“Defendant has had literally four years to participate in drug treatment, to satisfy the terms of his probation. He has received departures. He has received extensions. He has received revocations and been put back on probation.
“I will specifically find the welfare of the offender will not be served by another sanction or placement on probation because he's been offered multiple breaks in each of these cases and multiple rounds of services and refuses to participate and make the choices he needs to make to be successful so for those reasons I'm going to require the defendant to serve his underlying terms in each case which are consecutive to each other.”
Here, Bevins was on probation in two separate cases. He had a prior probation violation, and the district court had imposed a 60–day jail sanction. After the second violation, the district court found and set forth with particularity the reasons why Bevins' welfare would not be served by another intermediate sanction or placement on probation. The district court's decision to revoke Bevins' 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 Bevins' probation and ordering him to serve his underlying prison sentence.
Affirmed.