Opinion
No. 107,537.
2012-08-31
STATE of Kansas, Appellee, v. Gary Lee HUGHES, Appellant.
Appeal from Finney District Court; Robert J. Frederick, Judge.
Submitted for summary disposition pursuant to K.S.A.2011 Supp. 21–6820(g) and (h).
Before GREENE, C.J., PIERRON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Garry Lee Hughes appeals the district court's revocation of his probation and order he serve his underlying sentence. We granted Hughes' motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 60). Finding no error, we affirm the district court.
Factual and Procedural History
Hughes pled guilty on August 11, 2009, to one count of battery against a law enforcement officer and one count of domestic battery, and the district court accepted his plea. In accordance with the plea agreement, the court sentenced Hughes to 24 months of probation with an underlying 21–month prison sentence.
On February 26, 2010, the State alleged Hughes had recently absconded and had failed to keep his probation officer informed about his whereabouts. Eventually, Hughes was arrested in Chicago and extradited back to Kansas. A hearing ensued, at which Hughes admitted to the State's allegations that he had violated his probation order. Consequently, the district court revoked his probation.
The State asked the district court to order Hughes to serve his underlying sentence, whereas Hughes asked the court to reinstate his probation order. Hughes also explained his transgressions to the court, claiming he had been kicked out of his Garden City home and then went to Chicago because he could stay at a home there. The court, however, ordered Hughes to serve his underlying sentence. Hughes appeals.
Analysis
Hughes admits he violated his probation order but nonetheless argues the district court abused its discretion by ordering him to serve his underlying prison sentence. He suggests the court erred because he had nowhere to go—other than Chicago—after he got kicked out of his home.
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). 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).
Hughes admitted he violated his probation order and explained why he did so to the district court. The court did not sympathize with this explanation:
“Well, it seems to me that when a person is on intensive supervision and they're in trouble, the first person they ought to be running to, instead of away from, is their intensive supervision officer. That didn't happen. There's nothing to suggest that there was even an attempt at that happening.”
Based on our review of the record, the district court's decision to revoke Hughes' probation was not arbitrary, fanciful, or unreasonable. Therefore, the court did not abuse its discretion by revoking his probation and ordering him to serve his underlying sentence.
Affirmed.