Opinion
No. 106,052.
2012-06-1
STATE of Kansas, Appellee, v. Jeremiah Q. GRANT, Appellant.
Appeal from Sedgwick District Court; Robb W. Rumsey, Judge. Sean M.A. Hatfield and Carl F.A. Maughan, of Maughan & Maughan of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Robb W. Rumsey, Judge.
Sean M.A. Hatfield and Carl F.A. Maughan, of Maughan & Maughan of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., ATCHESON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Jeremiah Q. Grant appeals the district court's revocation of his probation and the order that he serve his underlying sentence. Finding no abuse of discretion, we affirm.
In 2008, Grant pled guilty to possession of methamphetamine and marijuana, both misdemeanors, in violation of K.S.A.2008 Supp. 65–4162(a)(3). The district court sentenced him to 12 months of probation with an underlying 12–month jail sentence for each offense, to be served concurrently. His probation agreement required—among other things—that he abstain from drug or alcohol use and obey all local, state, and federal laws.
Only 2 months later, however, Grant violated his probation. He admitted he had tested positive for marijuana use, failed to obey various laws, and failed to abstain from alcohol. The district court revoked but reinstated Grant's probation, again requiring him to serve 12 months of probation.
Shortly before the conclusion of that 12–month period, however, Grant again stumbled, committing a host of probation violations, including aggravated assault and unlawfully possessing a firearm. Yet again, the court showed grace, revoking and reinstating Grant's probation order for a 24–month period while expressly cautioning that his probation would be on a “zero tolerance” basis. Grant was aware of this condition.
Five months later, Grant violated this zero-tolerance probation. He admitted he had failed to pay fines, failed to complete community service, violated his curfew, tested positive for cocaine, and had driven on a suspended license and without insurance. The court revoked Grant's probation and this time ordered him to serve his underlying sentence.
In this appeal, Grant concedes he violated the terms of his zero-tolerance probation but nonetheless argues the district court abused its discretion. Specifically, he argues the “root cause” of his probation violations is his substance-abuse, and that he tried to comply with his probation “but arguably ... was not willfully refusing to comply.”
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, 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).
Grant cites State v. Duke, 10 Kan.App.2d 392, 699 P.2d 576 (1985), for the proposition that a court must consider the reasons for the defendant's conduct in failing to comply with his or her probation agreement. Duke, however, held that a district court abuses its discretion when it automatically revokes a defendant's probation because of nonpayment of restitution or other fines. 10 Kan.App.2d at 393. Several cases have limited Duke to that situation only. See, e.g., State v. Ferguson, 271 Kan. 613, 618–19, 23 P.3d 891 (2001) (finding no abuse of discretion where district court revoked defendant's probation for reasons other than nonpayment of restitution, including failing to report for required drug screenings).
Similarly, even if we do not consider Grant's nonpayment of fees, he still violated his zero-tolerance probation in failing to complete community service, violating his curfew, testing positive for cocaine, and driving on a suspended license and without insurance.
The district court's decision to revoke Grant's probation was not arbitrary, fanciful, or unreasonable. See Gant, 288 Kan. at 81–82. The court did not abuse its discretion.
Affirmed.