Opinion
No. 107,319.
2012-08-31
STATE of Kansas, Appellee, v. Jason E. DUTCHER, Appellant.
Appeal from Sedgwick District Court; Terry L. Pullman, Judge.
Submitted for summary disposition pursuant to K.S.A.2011 Supp. 21–6820(g) and (h).
Before GREENE, C.J., PIERRON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jason E. Dutcher appeals the district court's revocation of his probation and order he serve his underlying sentence. We granted Dutcher's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 60). Finding no error, we affirm the district court.
Factual and Procedural History
Dutcher pled guilty on December 14, 2009, to one count of the Sheriff Matt Samuels Chemical Control Act, in violation of K.S.A.2008 Supp. 65–7006(b) (distribution of pseudoephedrine knowing that the recipient would use it to manufacture methamphetamine). The district court granted Dutcher's motion for a departure from his presumptive prison sentence and thus sentenced him to 36 months of probation with an underlying 51–month prison sentence.
The district court also cautioned Dutcher at his sentencing hearing that, as a condition of his probation, he would be prohibited from using illegal drugs.
Several months later, however, the State alleged Dutcher had used methamphetamines on multiple occasions while on probation. A hearing ensued, at which Dutcher admitted to the State's allegations. Consequently, the district court revoked and reinstated his probation on the condition that he would remain in jail until he could be assigned to a residential treatment program.
Nearly 1 year after the hearing, the State again alleged Dutcher had recently used methamphetamines on multiple occasions. Dutcher again admitted to the State's allegations. The district court revoked and reinstated Dutcher's probation on the condition that he enter and successfully complete a new drug-treatment program. The district court also warned Dutcher that his probation would now be zero-tolerance:
“This is your last chance, If you choose to use meth, if you choose to use any other illegal drug, and it's brought to me in a probation violation, you're going to be going to prison for 51 months. If that doesn't give you motivation, I honestly don't know what will. You either want to choose—you either want to use meth more than you want to stay free and at liberty, and if that's your choice, fine. But you know what consequences your choice will make, and that is totally up to you.”
Once again, Dutcher stumbled: The State alleged—and Dutcher admitted to the district court—that he used methamphetamines less than 2 months after his last hearing. Despite Dutcher's requests, the court revoked his probation and ordered him to serve his underlying sentence. The court, however, reduced Dutcher's prison sentence from 51 months to 41 months. Dutcher appeals the court's decision to revoke his probation.
ANALYSIS
Dutcher admits he violated his probation order but nonetheless argues the district court abused its discretion by ordering him to serve his underlying prison sentence.
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 district court, then it cannot be said that the district court abused its discretion. State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
Even though, at his final probation revocation hearing, Dutcher personally told the district court that he had several redeeming qualities despite his addiction to methamphetamines, the district court found that Dutcher had been given ample opportunity to address his drug addiction and he had been unable or unwilling to do so. Based on our review of the record, the district court's decision to revoke Dutcher's probation was not arbitrary, fanciful, or unreasonable. Therefore, the court did not abuse its discretion by revoking his probation and ordering him to serve his underlying sentence.
Affirmed.