Opinion
No. 106,982.
2012-07-27
STATE of Kansas, Appellee, v. David Prentiss DODSON, Appellant.
Appeal from Finney District Court; Philip C. Vieux, Judge.
Before MALONE, P.J., MARQUARDT, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
David Prentiss Dodson appeals the district court's revocation of his probation. Dodson has moved for summary disposition of his sentencing appeal pursuant to Kansas Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 60). The State has filed no response.
In October 2008, pursuant to a plea agreement, Dodson pled no contest to and was convicted of possession of marijuana. The district court sentenced him to 12 months' probation with an underlying prison sentence of 24 months. This sentence represented both a dispositional and a durational departure. On March 6, 2009, Dodson's Intensive Supervision Officer (ISO) filed an affidavit and supporting documentation stating that Dodson had violated his probation by failing to report. On this basis, the State moved for revocation of Dodson's probation. After a hearing, the district court revoked and then reinstated Dodson's probation, extending it 24 months.
On April 18, 2011, Dodson's ISO filed a second affidavit and supporting documentation, stating that Dodson had violated multiple conditions of his probation. The alleged violations included an April 2011 conviction of possession of marijuana in a separate case, missing a scheduled visit with his ISO, admitting that he had used marijuana on seven occasions, and admitting that he had consumed alcohol. Based on these allegations, the State again moved to revoke Dodson's probation.
On June 16, 2011, the district court held an evidentiary hearing at which Dodson admitted the violations. Dodson presented the testimony of Kendall Carswell, a substance abuse specialist at Heartland Regional Drug and Alcohol Assessment Center. Carswell had completed an assessment on Dodson and felt that he would benefit from inpatient drug treatment rather than imprisonment. The State pointed out that Dodson was facing incarceration due to the April 2011 conviction and, due to his imprisonment, would not be available to attend inpatient drug treatment. The district court revoked probation and ordered Dodson to serve his original sentence. Dodson timely appealed.
“Probation from serving a sentence under Kansas law is generally considered ‘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 established a violation of probation conditions, the decision to revoke lies within the sound discretion of the district court. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). “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. [Citation omitted.]” State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
Here, Dodson admitted to violating the terms of his probation. The ISO submitted seven admission statements, signed by Dodson, in which he admitted to using marijuana and one in which he admitted to consuming alcohol. Moreover, approximately 2 years prior, the district court had revoked and reinstated Dodson's probation due to another admitted violation. Finally, Dodson was facing incarceration on another possession of marijuana conviction in a separate case. Considering these facts, the district court did not abuse its discretion in revoking Dodson's probation.
Affirmed.