Opinion
No. 112678.
05-29-2015
STATE of Kansas, Appellee, v. Anthony D. HERVEY, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Anthony D. Hervey appeals the district court's decision revoking his probation and ordering him to serve a modified prison sentence. We granted Hervey's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 66). The State filed a response and requested that the district court's judgment be affirmed.
On December 2, 2013, Hervey pled guilty to possession of cocaine with the intent to distribute, possession of hydrocodone, and possession of paraphernalia with the intent to distribute or manufacture. On January 15, 2014, the district court imposed a controlling sentence of 38 months' imprisonment but made border-box findings and placed Hervey on probation with community corrections for 18 months.
On April 30, 2014, the State filed a probation violation warrant alleging that Hervey had failed to report to his intensive supervision officer (ISO) as directed and that his current whereabouts were unknown. The warrant also alleged that Hervey committed the new offenses of driving while suspended, no proof of insurance, and no seatbelt. At a hearing on July 22, 2014, Hervey stipulated to the violations. The district court revoked Hervey's probation and ordered him to serve a modified sentence of 19 months' imprisonment. Hervey timely appealed the probation revocation.
On appeal, Hervey contends that he missed his April 15, 2014, appointment with his ISO due to marital issues with his wife, and after that point, he was afraid that he would be incarcerated if he reported. Hervey notes that he had taken several UAs, all of which were clean. He also notes that he recently had been given a job as an apprentice electrician with Tracker Electric. Finally, Hervey explains that he was driving on a suspended license because his wife's car broke down and he had to drive out to rescue her. Given these mitigating factors, Hervey argues that the district court erred in revoking his probation and ordering him to serve a modified 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). 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). The party asserting the district court abused its discretion bears the burden of showing such abuse of discretion. State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).
Here, the district judge noted at the probation revocation hearing that he initially placed Hervey on probation by making border-box findings over the State's objection. The judge expressed disappointment that Hervey violated his probation after only 3 months. The judge informed Hervey that his criminal record “includes 40 entries” and that this was “the umpteenth time that you've been caught driving without a driver's license.” Despite these failures, the district court showed leniency by modifying Hervey's sentence. The district court's decision to revoke Hervey's probation was not arbitrary, fanciful, or unreasonable, and the decision was not based on an error of law or fact. See Ward, 292 Kan. at 550. Thus, we conclude the district court did not abuse its discretion in revoking Hervey's probation and ordering him to serve a modified prison sentence.
Affirmed.