Opinion
No. 107,014.
2012-08-31
STATE of Kansas, Appellee, v. Gerald BROWN, Appellant.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Submitted for summary disposition pursuant to K.S.A.2011 Supp. 21–6820(g) and (h).
Before GREENE, C.J., PIERRON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Gerald Brown appeals the district court's decision revoking his probation and order that he serve his original sentence. We granted Brown's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 60). Finding no error, we affirm the district court.
Factual and Procedural History
Brown entered a plea and was found guilty of an offender registration violation. On December 3, 2009, the district court imposed an underlying sentence of 36 months' imprisonment but granted probation for a term of 36 months. After placing Brown on probation, the district court warned Brown that this was his one shot; he would not have a lot of leeway. Despite this warning, several probation violation warrants were issued alleging Brown had violated the terms and conditions of his probation. Each time, the district court reinstated probation but cautioned Brown to abide by the terms of his probation. Finally, the third time, the district court revoked Brown's probation and ordered him to serve the underlying sentence.
At the third and final probation revocation hearing on November 2, 2011, Brown stipulated to violating the following three conditions of his probation: (1) Brown was unsuccessfully discharged from drug/alcohol treatment; (2) Brown was scheduled to begin sex offender treatment at Clinical Associates on August 15, 2011, but, as of this date, he had not attended any required sessions; and (3) Brown failed to make court payments as directed. After considering the arguments and recommendations of the parties, the district court revoked Brown's probation and ordered him to serve his original sentence. Brown timely appealed.
Analysis
On appeal, Brown claims the district court abused its discretion in revoking his probation and ordering him to serve the full underlying sentence rather than reducing his sentence or reinstating probation. Brown explained he “was looking for work and expressed willingness to get into treatment as his finances would allow.”
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).
The record on appeal clearly supports the district court's decision to revoke Brown's probation. The district court reminded Brown that at the last reinstatement of his probation, the court had said “no more chances,” and to reinstate probation would be asking the court to “go against my word.” The State proved Brown violated conditions of his probation, and we find no judicial action that was arbitrary, fanciful, or unreasonable. Accordingly, we conclude the district court did not abuse its discretion by revoking Brown's probation and ordering him to serve his original sentence.
Affirmed.