Opinion
111,847.
06-26-2015
STATE of Kansas, Appellee, v. Gary Curtis FAIRBANKS, Appellant.
Julie McKenna, of McKenna Law Office, P.A., of Salina, for appellant. Anna M. Jumpponen, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Julie McKenna, of McKenna Law Office, P.A., of Salina, for appellant.
Anna M. Jumpponen, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., HILL and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Gary Curtis Fairbanks appeals from the district court's order revoking his probation and ordering him to serve a reduced sentence. Finding no abuse of discretion, we affirm.
Factual and Procedural History
The State originally charged Fairbanks with two counts each of residential burglary and misdemeanor theft. He later pled guilty to one count of misdemeanor theft. In May 2012, the court sentenced Fairbanks to an underlying prison term of 12 months but granted him 12 months' probation from the sentence under court services' supervision. The court imposed standard probation terms including refraining from the use of alcohol or nonprescribed drugs and regular reporting to his court services officer (CSO).
Approximately 7 months into his probation, the State moved to revoke Fairbanks' probation. Initially, the State alleged Fairbanks had failed to make payments on the court-imposed costs; the State further alleged that Fairbanks tested positive for and admitted using marijuana. Before the motion was heard, the State filed a supplemental motion alleging another violation: his CSO observed Fairbanks enter a drinking establishment. Less than 2 weeks later, the State filed a second supplemental motion alleging Fairbanks failed to report for CSO-imposed jail sanctions and failed to attend several regularly scheduled appointments with his CSO. In February 2013, Fairbanks stipulated to violating his probation as alleged; the court revoked and reinstated Fairbanks' probation, but ordered him to serve a 10–day jail sanction. Fairbanks was released from this jail sanction on February 15, 2013.
Several months later, the State again filed a motion seeking to revoke Fairbanks' probation. This motion asserted that Fairbanks had failed to report to his CSO as directed and again had tested positive for marijuana in August of 2013. Over the next several weeks, supplemental motions for revocation were filed alleging additional violations including Fairbanks' admission that he used marijuana and alcohol several times in early August, Fairbanks used marijuana again in October of 2013, he failed to report to his CSO as scheduled in November, continued to use illicit drugs, and he failed to be truthful with his CSO, and he failed to report to his CSO on several occasions in March 2014.
The district court held a second probation revocation hearing on March 20, 2014. During the hearing, the CSO admitted Fairbanks had successfully completed a drug treatment program in July 2013, and that if Fairbanks had remained compliant with his probation his supervision level may have been reduced. In August 2013, however, Fairbanks tested positive for drugs. Fairbanks' CSO testified about the circumstances leading to the new revocation motion and the four supplemental motions; his testimony described Fairbanks' failed drug tests, his failure to report, and his failure to be honest with the CSO. The CSO conceded that Fairbanks was working during this time and that more recent drug tests were negative. Fairbanks did present a physician's note advising he would be undergoing an outpatient procedure in January 2014 and documentation of some doctors' appointments in February, but he provided no other verification of medical issues to the CSO for the dates he failed to report. Based on the entire record, the CSO recommended that Fairbanks' probation be revoked.
Fairbanks and his mother testified on his behalf. Fairbanks testified that between February and August 2013, he had regularly reported to his CSO and that his CSO had talked about reducing his supervision status. Fairbanks was ordered to increase his reporting in August 2013, however, after he testified positive for marijuana. Fairbanks admitted testing positive again for marijuana in October 2013 after doctors diagnosed his mother with cancer. Fairbanks and his brother were helping his mother with her medical appointments. Fairbanks further testified that he did not abscond in November 2013, but he failed to report because he was having painful stomach issues which ultimately lead to his gall bladder surgery in February 2014. Fairbanks testified he told his CSO about his medical issues, but did not provide documentation directly to the CSO. Fairbanks also testified that the daily reporting was difficult because he was working part-time in addition to his medical issues. Finally, Fairbanks testified that because he had completed drug treatment, paid his fines, and had not been arrested for 2 years, he believed the court should release him from probation. Fairbanks' mother testified about her cancer diagnosis and treatments, the assistance Fairbanks had been providing her, and the health issues Fairbanks was experiencing.
At the conclusion of the hearing, the district court revoked Fairbanks' probation and ordered him to serve a modified sentence of 30 days' incarceration and authorized work release during the 30 days. Fairbanks timely appealed. The imposition of the sentence was suspended with the filing of an appeal bond.
Analysis
On appeal, Fairbanks contends that although he violated the terms of his probation, his violations were understandable under the circumstances. He also asserts that ordering him to serve a reduced sentence was an abuse of discretion because he had been at the point—prior to his violations—that his CSO was considering reducing his level of supervision.
Unless required by law, probation is granted as a privilege and not as a matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). If the original crime of conviction is a misdemeanor, as it was here, upon establishing a violation of probation the court may continue or modify the probation, impose an intermediate sanction of confinement in the county jail, or revoke the probation and require the defendant to serve the sentence imposed or a lesser sentence. K.S.A.2014 Supp. 22–3716(b)(3)(B)(i), (ii), (iii). Accordingly, once a probation violation has been established, the decision to revoke probation is within the sound discretion of the district court. State v. Skolaut, 286 Kan. 219, 227–28, 182 P.3d 1231 (2008) ; 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).
We do not find any abuse of discretion here. Fairbanks' attempt to minimize his violations is not compelling. His compliance during a portion of his probation period is not a basis to excuse his violations, especially when violations continued after motions to revoke were filed. Although Fairbanks completed drug treatment, he used again within a month after his release and again when stressful events occurred. Fairbanks treated his duty to report to his CSO as permissive rather than mandatory and made only minimal efforts before the revocation hearing to show his CSO records relating to his medical condition that he claimed caused him to miss meetings. Finally, we would note that the district court reduced Fairbanks' sentence when revoking his probation. Instead of being ordered to complete his 12–month original sentence, the district court reduced the sentence to 30 days.
Finding the district court did not abuse its discretion, we affirm.
Affirmed.