Opinion
No. 107,591.
2013-01-11
STATE of Kansas, Appellee, v. Robert J. DELGADO, Appellant.
Appeal from Harvey District Court; Marty Joe Dickinson, Judge.
Submitted for summary disposition pursuant to K.S.A.2011 Supp. 21–6820(g) and (h).
Before STANDRIDGE, P.J., GREEN, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Robert J. Delgado appeals the district court's revocation of his probation and the order to serve the modified underlying prison sentence. He moved to proceed by summary disposition in lieu of briefing pursuant to Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 60). The State did not file a response. We granted Delgado's motion for summary disposition and now affirm the district court.
After being arrested in July 2006 for possession of anhydrous ammonia to manufacture a controlled substance, Delgado pled guilty to one count of possession of drug paraphernalia to manufacture a controlled substance pursuant to a plea agreement under which he agreed to testify against his codefendant. However, Delgado failed to testify in the codefendant's case, so the original charges were reinstated. Pursuant to a new plea agreement, Delgado pled guilty to attempted possession of anhydrous ammonia to manufacture methamphetamine and was sentenced to a dispositional departure sentence of 36 months of probation to allow him to complete a community corrections program, with an underlying prison sentence of 62 months.
In October 2009, Delgado did not contest that he had violated the terms of his probation, so the court revoked and reinstated his probation with the added condition that he enter into and successfully complete an inpatient alcohol and drug treatment program. Thereafter, Delgado's probation was modified twice on the recommendation of his community corrections officer after he tested positive for methamphetamine and failed to report. Finally, in August 2011, Delgado did not contest that he had committed multiple probation violations, including testing positive for methamphetamine, failing to report, failing to attend an outpatient alcohol and drug treatment session, and failing to complete sanctions for prior violations. As a result, the court revoked his probation but modified his sentence from 62 to 60 months in prison with a 36–month term of post-release supervision. On appeal, Delgado contends the district court abused its discretion in ordering him to prison for a mere technical violation when he was close to finishing his probation term.
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 trial court, then it cannot be said that the trial court abused its discretion. State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
At the original sentencing hearing—after Delgado had already violated the terms of his plea agreement—the district court noted that it was “about the last time you're going to get any kind of clemency” and required that he cooperate with the rules of his probation. Despite this warning, Delgado violated the conditions of his probation, was again shown leniency when the court reinstated his probation, and yet continued to violate his probation. Delgado has clearly demonstrated that he is not amenable to probation because, as the district court noted, he was given every opportunity to make his probation work but failed to avail himself of the treatment available to him, continued to use methamphetamine, failed to report as directed, and knew he was putting himself in jeopardy when he did so.
Contrary to Delgado's contention, testing positive for methamphetamine, failing to report, failing to attend a treatment session, and not completing sanctions for prior violations cannot be characterized as mere “technical” violations. Nor does the fact that Delgado was close to finishing his probation mitigate the seriousness of these multiple violations. Under these circumstances, the district court was well within its discretion in revoking Delgado's probation and ordering imprisonment. We find no abuse of discretion in the district court's decision.
Affirmed pursuant to Supreme Court Rule 7.041a.