Opinion
No. 107,788.
2013-02-22
STATE of Kansas, Appellee, v. Melody M. CLEGHORN, Appellant.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Submitted for summary disposition pursuant to K.S.A.2012 Supp. 21–6820(g) and (h).
Before BRUNS, P.J., GREEN and BUSER, JJ.
PER CURIAM:
Melody M. Cleghorn appeals the district court's revocation of her probations in two consolidated criminal cases. She moved for summary disposition pursuant to Supreme Court Rule 7.041A (2012 Kan. Ct. R. Annot. 62). The State did not oppose Cleghorn's request for summary disposition but asked that the district court's order be affirmed. We affirm.
On June 22, 2009, Cleghorn was charged with possession of methamphetamine. On April 1, 2010, Cleghorn pled guilty to the charge. On October 22, 2009, Cleghorn was charged with possession of methamphetamine with intent to sell and failure to affix a tax stamp. On May 11, 2010, she pled guilty to that charge.
Cleghom was sentenced in both criminal cases on July 7, 2010. With regard to the possession conviction, she was sentenced to 13 months' imprisonment but granted 12 months' probation with mandatory drug treatment. With regard to the possession with intent to sell and failure to affix a tax stamp convictions, Cleghom was sentenced to a controlling sentence of 22 months' imprisonment but granted 18 months' probation. Both sentences were ordered to run concurrent with each other.
Almost 1 year later, on June 27, 2011, the State moved to revoke Cleghorn's probation in both cases because during the prior month Cleghom had tested positive for ingesting amphetamine. The probation revocation hearing was held on July 21, 2011, and the district court revoked, reinstated, and extended Cleghorn's probation by 9 months in both cases.
The State filed a second motion to revoke Cleghorn's probations on October 5, 2011, because during the previous month Cleghom again had tested positive for ingesting amphetamine. The probation revocation hearing was held on November 1, 2011, and the district court, once again, revoked and reinstated Cleghorn's probation in both cases.
A third probation violation hearing was held for both cases on March 1, 2012. At the hearing, Cleghom stipulated to using methamphetamine on two occasions. The judge addressed Cleghom stating, “It's just clear to me, Ms. Cleghom, that you care more about methamphetamine and amphetamine than you do your family, your personal freedom, anything in the world.... You were in treatment; you didn't take advantage of it.” The district court revoked Cleghorn's probation in both cases and ordered her to serve the sentences previously imposed.
On appeal, Cleghom contends the district court abused its discretion “in refusing to reinstate probation because Ms. Cleghom needed treatment for her substance abuse issues.”
Probation from serving a sentence is “ ‘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.’ [Citations omitted.]” State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once the State has proven a violation of the conditions of 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, fanciftil, or unreasonable. State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
The district court afforded Cleghorn several opportunities to successfully complete her probations and avoid serving her prison sentences. The probations allowed her to obtain the substance abuse treatment she obviously needed. Cleghorn's repeated use of controlled substances while on probation for violating Kansas drug laws, however, showed that she was not amenable to treatment or probation. Accordingly, we find no abuse of the district court's discretion in imposing imprisonment.
Affirmed.