Opinion
112,602 112,603.
05-29-2015
STATE of Kansas, Appellee, v. Ricardo CASTELLANOS, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Ricardo Castellanos appeals the district court's decision revoking his probation and ordering him to serve his original sentences in two separate cases consolidated for appeal. We granted Castellanos' 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.
In 13CR998, Castellanos pled guilty to one count of fleeing or attempting to elude an officer and one count of possession of a controlled substance, a class A misdemeanor. On July 17, 2013, the district court sentenced Castellanos to 11 months in prison for the felony conviction and a consecutive sentence of 12 months in jail for the misdemeanor conviction. The district court granted probation for 12 months. In 13CR1410, Castellanos pled guilty to one count of theft after a prior conviction. On July 17, 2013, the district court sentenced Castellanos to 13 months in prison but granted probation for 12 months.
On January 28, 2014, Castellanos stipulated to violating his probation in both cases by failing to report to his probation officer and by failing to provide a change of address. The district court revoked Castellanos' probation and ordered him to serve his original sentence in each case. Castellanos timely appealed his probation revocation.
On appeal, Castellanos contends that the district court erred by revoking his probation and ordering him to serve his original sentences. Castellanos acknowledges that the decision to revoke probation rests within the district court's sound discretion.
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, Castellanos received probation in two separate cases. However, the probation never got off the ground because Castellanos failed to report for intake and he failed to provide a change of address and phone number to his probation officer. The district court's decision to revoke Castellanos' 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 Castellanos' probation and ordering him to serve his original sentences.
Affirmed.