Opinion
No. 106,806.
2012-08-31
STATE of Kansas, Appellee, v. John E. HOSTETLER, Appellant.
Appeal from Sedgwick District Court; James R. Fleetwood, Judge.
Before GREENE, C J., PIERRON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
John E. Hostetler appeals the district court's failure to modify or reinstate his probation and the court's order that he serve his underlying sentence. We granted Hostetler's motion for summary disposition in lieu of briefs pursuant to K.S.A.2011 Supp. 21–6820(g) and (h) and Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 60). Concluding there was no abuse of discretion, we affirm the district court.
On August 12, 2009, Hostetler was placed on probation after he pled guilty to four counts of theft and one count of possession of cocaine, with an underlying sentence of 58 months' imprisonment. The district court informed Hostetler that he was not to possess or use any alcohol or illegal drugs during his probation.
On November 5, 2009, Hostetler admitted to violating multiple conditions of his probation. The district court revoked and reinstated his probation, on the condition that Hostetler complete an inpatient treatment program. The court cautioned Hostetler to “get it cleaned up now and stop breaking the law, because the next time I see him I'm going to send him up.” The court reminded Hostetler that his underlying sentence was 58 months' imprisonment, and noted that it was with great reluctance that he followed the attorneys' recommendation to reinstate probation.
On December 6, 2010, Hostetler pled guilty to one count of theft. The district court again found Hostetler was in violation of the conditions of his probation and revoked and reinstated his probation. On the new theft case, the district court placed Hostetler on 12 months' probation with Community Corrections Residential, with an underlying sentence of 11 months' imprisonment. The district judge stated that he was going to follow the plea agreement, but he noted that he was “not really that excited about this plea agreement” and cautioned Hostetler yet again that “if you screw up on probation, I'm gonna [ sic ] send you to prison.” Hostetler was again warned not to possess or use any alcohol or illegal drugs. As a condition of the residential program, Hostetler signed a vehicle agreement stating that “[u]pon reasonable suspicion I will allow search without warrant of ... my vehicle ... upon request of my ISO [intensive supervision officer] ... with assistance from any law enforcement officer.”
On June 17, 2011, ISO Kristen Leonard received a phone call from Hostetler's employer, who made allegations about drugs and “big money,” which led to the search of Hostetler's vehicle. Hostetler consented to ISOs Leonard and Haylea Grier searching his vehicle, and the search revealed methamphetamine, paraphernalia, and currency.
On June 20, 2011, the court approved a warrant alleging that Hostetler had violated the conditions of his probation by having methamphetamine, drug paraphernalia, and excess funds in his vehicle and being discharged from the residential program. Hostetler filed a motion to suppress evidence, arguing that his vehicle was illegally searched. After a hearing, the district court denied the motion, finding Hostetler had given consent to search.
On September 20, 2011, the district court held an evidentiary hearing on the probation violations. The State introduced the methamphetamine and paraphernalia as exhibits. After hearing from counsel, from Hostetler, and from the State, the court determined that Hostetler was in violation of his probation for having methamphetamine, drug paraphernalia, and excess funds in his vehicle and being discharged from the residential program. The court then revoked Hostetler's probation,
Hostetler appeals the imposition of his underlying sentence, arguing that the district court abused its discretion by failing to modify his sentence or reinstate his probation. Hostetler does not challenge the sufficiency of the evidence supporting the four probation violations the district court found or the underlying search relied upon by the State; Hostetler only argues that the district court abused its discretion by failing to modify his sentence or reinstate probation because Hostetler had not tested positive for narcotics.
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). A defendant's probation violation must be established by a preponderance of the evidence. State v. Inkelaar, 38 Kan.App.2d 312, 315, 164 P.3d 844 (2007), rev. denied 286 Kan. 1183 (2008). 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 proprietary of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
Before imposing Hostetler's underlying sentence, the district court found Hostetler had committed four probation violations and concluded that Hostetler “has had the best opportunity for the alternative supervision that the County has to offer. Therefore, his probation will remain revoked. He needs to serve his sentence.”
Having carefully reviewed the record of proceedings in the district court, we find no indication of arbitrary or unreasonable judicial action in revoking Hostetler's probation, and we thus decline to conclude there was any abuse of discretion in the district court's action.
Affirmed.