Opinion
No. 112651.
04-03-2015
STATE of Kansas, Appellee, v. William D. BUNCH, Appellant.
MEMORANDUM OPINION
PER CURIAM.
William D. Bunch appeals the district court's decision revoking his probation and ordering him to serve a modified prison sentence. We granted Bunch's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041 A (2014 Kan. Ct. R. Annot. 66). The State filed a response and requested that the district court's judgment be affirmed.
On September 23, 2013, Bunch pled guilty to one count of distributing a controlled substance (marijuana). On November 5, 2013, the district court sentenced Bunch to 22 months' imprisonment but granted probation for 18 months. Bunch did not appeal his sentence.
On August 4, 2014, an affidavit of probation violation was filed alleging that Bunch had tested positive for the use of drugs and committed other violations of his probation. At a hearing on August 27, 2014, Bunch stipulated to violating the terms of his probation by using drugs, committing a new crime, and failing to pay court costs. Bunch asked for another chance at probation in order to continue his medications and work on his education. Instead, the district court revoked Bunch's probation and ordered him to serve a modified sentence of 15 months' imprisonment. Bunch timely appealed the probation revocation.
On appeal, Bunch contends the district court erred by revoking his probation and ordering him to serve a modified prison sentence. Bunch acknowledges that the decision to revoke probation rests 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). 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).
Here, the district court expressed some sympathy for Bunch based upon his mental health issues. However, based upon the seriousness of his probation violations, the district court determined that probation revocation was appropriate. The district court modified Bunch's sentence to 15 months' imprisonment. Based on the record, the district court's decision to revoke Bunch'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 Bunch's probation and ordering him to serve a modified prison sentence.
Affirmed.