Opinion
No. 112986.
07-24-2015
STATE of Kansas, Appellee, v. Donavan JOHNSON, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Donovan James Johnson appeals the district court's decision to revoke his probation in case 12 CR 819 and ordering him to serve his underlying sentence of 24 months' imprisonment. We granted Johnson's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 66). Finding no abuse of discretion, we affirm.
Factual and Procedural Background
Johnson was placed on probation for 18 months on 2 counts of possession of a controlled substance with a controlling sentence of 24 months imprisonment. Approximately 1 year later, the State moved to revoke Johnson's probation due to new convictions for a felony aggravated weapons violation and possession of methamphetamine with intent to sell, deliver, or distribute. The district court revoked Johnson's probation finding that because of “the new conviction in Case No. 14 CR 17, aggravated weapons violation by a convicted felony [sic], and the new conviction in Case No. 14 CR 257, possession of methamphetamine with intent to sell, deliver or distribute, that the defendant did in fact violate the terms of his probation herein.” He files a timely appeal.
Analysis
On appeal, Johnson argues the district court abused its discretion in revoking his probation and ordering execution of the underlying 24 months' imprisonment sentence. Johnson acknowledges that the decision to revoke probation rests within the sound discretion of the district court.
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). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). The party asserting the district court abused its discretion bears the burden of showing such abuse of discretion. State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).
Here, the district court warned Johnson at his original sentencing hearing by stating, “[Y]ou understand that if you fail to appear or you commit any new crimes, that the State would have the right to set aside the Plea Agreement.” Johnson indicated he understood the implications. At the probation revocation hearing, the district court specified the reasons for revoking Johnson's probation as “based on the types and continuing convictions and violations that he has had.” Given the seriousness of his probation violations, the district court determined that probation revocation was appropriate. See K.S.A.2014 Supp. 22–3716(c)(8) (intermediate sanctions not required when offender commits a new felony). Based on the record, the district court's decision to revoke Johnson's probation was not arbitrary, fanciful, or unreasonable, and the decision was not based on an error of law or fact. See Ward, 292 Kan. at 550. Thus, we conclude the district court did not abuse its discretion in revoking Johnson's probation and ordering him to serve his underlying prison sentence.
Affirmed.