Opinion
Nos. 108,700 108,701 108,702.
2013-07-12
STATE of Kansas, Appellee, v. Felix J. HURTADO, Appellant.
Appeal from Sedgwick District Court; David J. Kaufman, Judge.
Submitted by the parties for summary disposition pursuant to K.S.A.2012 Supp. 21–6820(g) and (h).
Before HILL, P.J., POWELL, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Felix Hurtado appeals the district court's decision revoking his probation in three different cases. We granted Hurtado's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2012 Kan. Ct. R. Annot. 62). We conclude there was no abuse of discretion and affirm the district court's revocation of probation.
On March 7, 2011, in case number 10 CR 739, Hurtado pled guilty to one count of offender registration violation. On May 26, 2011, the district court imposed an underlying sentence of 130 months' imprisonment but granted probation for a term of 18 months. Also on March 7, 2011, in case number 10 CR 2537, Hurtado pled guilty to three counts of offender registration violation. On May 26, 2011, the district court imposed an underlying sentence of 121 months' imprisonment, to be served consecutive to his sentence in 10 CR 739, but granted probation for a term of 18 months. Additionally, on March 7, 2011, in case number 11 CR 418, Hurtado pled no contest to possession of a firearm. On May 26, 2011, the district court imposed an underlying sentence of 21 months' imprisonment, to be served consecutive to his sentences in 10 CR 739 and 10 CR 2537, but granted probation for a term of 18 months. Hurtado did not appeal his sentences.
On September 29, 2011, Hurtado admitted to violating his probation by failing to report on six occasions as directed and failing to notify his ISO that he had a police contact. The district court revoked and reinstated Hurtado's probation.
On February 10, 2012, Hurtado admitted to violating his probation by failing to report on two occasions as directed. The district court reinstated his probation with field services under the same terms and conditions, and the court ordered Hurtado to attend in-patient treatment at Atishwin and receive individual psychotherapy through ComCare.
At Hurtado's third and final probation revocation hearing on August 15, 2012, Hurtado admitted to violating his probation by failing to report on two occasions as directed and being unsuccessfully discharged from Atishwin due to nonattendance. Hurtado argued for reinstatement or, in the alternative, he requested that the district court modify the underlying prison sentence. The district court refused to reinstate Hurtado's probation and sentenced him to 130 months in 10 CR 739, 120 months in 10 CR 2537, and 21 months in 11 CR 418, and the modified the original sentence, running the three sentences concurrently for a controlling sentence of 130 months' imprisonment. On appeal, Hurtado contends that the district court erred in revoking his probation.
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 and 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 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).
Here, the district court provided Hurtado with numerous opportunities to satisfy the conditions of his probation, but Hurtado failed to comply with those conditions. At the final probation violation hearing, the judge recounted the history of Hurtado's case and stated:
“He's been given all of these opportunities, and he's shown himself to be the type of individual that just doesn't want to comply with probationary conditions. So he leaves me with no choice, but to order that he be remanded to the custody of Secretary of Corrections to serve his sentence.”
We cannot say that no reasonable person would take the view adopted by the district court. The district court did not abuse its discretion by revoking Hurtado's probation.
Affirmed.