Opinion
No. 107,601.
2012-10-5
STATE of Kansas, Appellee, v. Juan Antonio GARIBAIDI, Appellant.
The district court sentenced Garibaidi to 18 months' probation, with an underlying 18–month prison sentence.
Appeal from Finney District Court; Wendel W. Wurst, Judge.
Submitted by the parties for summary disposition pursuant to K.S.A.2011 Supp. 21–6821(g) and (h).
Before BRUNS, P.J., PIERRON and MARQUARDT, JJ.
MEMORANDUM OPINION
PER CURIAM.
Juan Antonio Garibaidi appeals the district court's decision to revoke his probation. We affirm.
On January 22, 2010, Juan Antonio Garibaidi was charged with two counts of possession of cocaine with intent to distribute, under K.S .A.2009 Supp. 21–36a05(a)(1), (c), a severity level 3 drug felony, two counts of failing to affix a drug tax stamp, under K.S.A. 79–5202, a severity level 10 nonperson felony, and one count of using a phone to facilitate a drug transaction, under K.S.A.2009 Supp. 21–36a07(b), a severity level 8 nonperson felony. In a plea agreement, Garibaidi pled no contest to one count of possession of cocaine with intent to distribute and one count of using a phone to facilitate a drug transaction, and the State dismissed the other charges.
Prior to sentencing, Garibaidi, who is not a United States citizen, was informed of possible immigration consequences by his attorney but waived an immigration consultation. The district court also asked Garibaidi if he understood the effect of his conviction on his immigration status.
“THE COURT: Mr. Garibaidi, are you a citizen of the United States?
“THE DEFENDANT (interpreted): No.
“THE COURT: Mr. Ganbaidi, have you received any counseling involving the consequences this matter may have on your immigration? Or naturalization status?
“THE DEFENDANT (interpreted): Yes.
“THE COURT: Do you wish to have any further consultation?
“THE DEFENDANT (interpreted): No.”
The district court sentenced Garibaidi to 18 months' probation, with an underlying 18–month prison sentence.
On April 14, 2011, Intensive Supervision Officer Diana Vasquez filed a motion to revoke Garibaidi's probation after he was convicted of illegally reentering the United States and sentenced to 18 months in federal prison. On January 17, 2012, the district court held a hearing where Garibaidi admitted to violating the terms of his probation. The district court subsequently revoked Garibaidi's probation and ordered him to serve his original sentence. Garibaidi timely appeals.
Probation is an act of grace and a privilege, not a matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once the State has proved 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). A district court abuses its discretion when its action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the district court's action, then it cannot be said that it abused its discretion. State v. Reed, 282 Kan. 272, 280, 144 P.3d 677 (2006).
On appeal, Garibaidi contends that the district court abused its discretion in revoking his probation. After Garibaidi's cocaine conviction, he was deported to Mexico; however, he illegally reentered the United States. He was convicted of illegal reentry and sentenced to 18 months in federal prison. On January 17, 2012, the district court held a hearing at which Garibaidi admitted to violating a condition of his probation. The district court did not abuse its discretion in revoking Garibaidi's probation.
Affirmed.