Opinion
No. 107,176.
2013-02-22
STATE of Kansas, Appellee, v. Darnell M. HUNTER, Appellant.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge. Shawn E, Minihan, of Kansas Appellate Defender Office, for appellant. Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge.
Shawn E, Minihan, of Kansas Appellate Defender Office, for appellant. Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Darnell M. Hunter appeals the district court's revocation of his probation arguing that “the district court erred in not placing [Hunter] back on probation.” Finding no error, we affirm the district court's ruling.
On September 15, 2008, Hunter pled guilty to the sale of cocaine. The district court sentenced Hunter to 34 months' imprisonment but granted him 18 months' probation and ordered him to pay court costs and fees.
On May 3, 2010, the State sought a warrant to revoke Hunter's probation for a variety of violations. In particular, the State alleged Hunter had tested positive for both marijuana and cocaine usage, he failed to report to his intensive supervisor officer (ISO), he failed to submit to drug testing, failed to complete a substance abuse program, and he failed to pay court costs. A probation revocation hearing was scheduled for May 24, 2010, and the district court issued a bench warrant for Hunter's arrest when he failed to appear.
The probation revocation hearing was held on July 1, 2010. Hunter stipulated to the probation violations and asked the court for another chance at probation. He claimed difficulties with obtaining time off work from his employer and fear of losing his job in order to meet with his ISO and to provide drug testing samples. The district court continued the hearing for 90 days to review Hunter's compliance with his probation.
The State filed an amended motion for probation revocation on September 30, 2010, alleging that Hunter tested positive for marijuana and cocaine usage on several occasions following the July 1, 2010, hearing and failed to report to his ISO on two occasions when ordered.
The district court held a hearing to consider the probation revocation matters on October 1, 2010. After considering the evidence presented, the district court revoked Hunter's probation but stayed execution for 90 days to review Hunter's compliance. The district court advised Hunter, “This is your last opportunity to stay out of prison, last.”
The matter was continued to January 21, 2011. At that time, the State advised that Hunter had made “some progress,” but also requested that Hunter receive “10 days shock time” because he failed to report to his ISO and he had a positive drug test. Hunter denied using opiates although he testified that he was taking a medication for which he had not provided a copy of the doctor's prescription to his ISO. The district court ordered Hunter to serve 10 days of jail time and extended his probation for an additional 6 months.
On April 29, 2011, another probation revocation hearing was held to consider the State's allegation that Hunter had recently tested positive for methadone on April 5, 2011. After considering the evidence, the district court revoked Hunter's probation and ordered him to serve his original sentence. Hunter timely appeals.
Discussion
At the outset, Hunter does not challenge the district court's revocation of his probation. On appeal, Hunter claims the district court erred when it declined to reinstate his probation and ordered him to serve his remaining prison sentence. In particular, Hunter claims the district court abused its discretion because probation would have assisted in his drug rehabilitation, his incarceration would increase prison overcrowding, and be very costly.
Probation from serving a sentence is “ ‘an act of grace by the sentencing judge and, unless otherwise required by law, is granted as a privilege and not as a matter of right.’ [Citations omitted.]” 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. State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
Hunter repeatedly violated his probation. In particular, drug testing revealed that he was incapable of not ingesting controlled substances. These violations were particularly egregious because Hunter was placed on probation for possession of cocaine. Additionally, while on probation, Hunter never successfully completed a drug treatment program. These factors support the district court's judgment that Hunter was not amenable to probation. Finally, Hunter's public policy arguments against incarceration are best presented to the legislature. The district court provided Hunter with several opportunities to avoid imprisonment to no avail. Under these circumstances, imprisonment was the only reasonable option available to the district court.
Affirmed.