Opinion
No. 107,358.
2013-03-15
STATE of Kansas, Appellee, v. Gary N. JACKSON, Appellant.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney, appellate division, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney, appellate division, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Gary N. Jackson appeals the revocation of his probation. Because we find that the district court did not abuse its discretion in revoking probation, its decision is affirmed.
Jackson pled guilty to three counts of attempted aggravated robbery in case No. 09CR2792. On March 12, 2010, the district court granted Jackson's motion for a dispositional departure and placed him on probation with community corrections for 36 months, with an underlying sentence of 52 months' imprisonment.
Less than a month later, Jackson pled guilty to possession of cocaine with intent to sell and misdemeanor possession of marijuana, methylenedioxymethamphetamine, and psilocybin in case No. 08CR3898. On July 23, 2010, the district court once again granted Jackson's motion for a dispositional departure and placed him on probation with community corrections for 18 months, with an underlying 40–month sentence to run consecutive to his sentence in 09CR2792.
In February 2011, Jackson was brought before the district court for a probation violation. At the hearing, Jackson stipulated to violating his probation by drinking alcohol and the court extended his probation for 36 months. In May 2011, Jackson was brought before the court for another probation violation. At the hearing, Jackson stipulated to violating his probation by smoking marijuana and the court extended his probation for another 36 months. The judge warned Jackson that it was his last chance:
“I don't care what your next violation is. It could be jaywalking for all I care. You're going to be a model probationer. You're going to do everything that's expected of you. You're going to take care of your family, and if you don't you're going to prison for 90 plus months. You got that?”
On January 4, 2012, Jackson was brought before the district court for yet another probation violation. Probation Officer Daniel Maier testified that he began supervising Jackson on October 19, 2010. Since that time, Jackson had failed to (1) perform community service work; (2) pay court costs; and (3) complete a counseling program. Also, Jackson's wife had obtained a protection from abuse (PFA) order against him; one of his probation conditions was to refrain from “assaultive behavior, violence[,] or threats of violence.” Jackson testified that he had “turned in some [community service] hours,” had attended one counseling session, and had given his wife money to pay his court costs because he was either working or without transportation. Jackson also acknowledged the PFA order but denied having struck or choked his wife. However, Jackson's wife testified in court that Jackson had struck and choked her, and the court concluded Jackson had committed an act of domestic violation against his wife.
The district court revoked Jackson's probation and ordered him to serve his underlying sentence of 92 months' imprisonment. Jackson timely appeals, claiming the court abused its discretion in revoking his probation.
The law on probation is settled. Probation is an act of grace by the sentencing judge and, unless 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 a violation has been established, the decision to revoke probation is within the sound discretion of the district court. State v. Skolaut, 286 Kan. 219, 227, 182 P.3d 1231 (2008); State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). Judicial discretion is abused when no reasonable person would have taken the position taken by the district court. State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
Having reviewed the record of the revocation proceedings, we find no indication of arbitrary judicial action and decline to conclude the district court abused its discretion in revoking Jackson's probation.
Affirmed.