Opinion
No. 112263.
08-14-2015
STATE of Kansas, Appellee, v. David L. KERN, Appellant.
Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant. Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.
Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
David Kern appeals the district court's decision to revoke his probation and to impose his underlying sentence. He contends the district court abused its discretion in not imposing an intermediate sanction as authorized by K.S.A.2013 Supp. 22–3716(c)(1). We disagree and affirm the district court.
Kern pled no contest to felony theft resulting from a shoplifting incident. The district court sentenced Kern to imprisonment for 10 months but granted him probation for 12 months.
Ten months later the State alleged that Kern had violated the terms of his probation by (1) having been convicted of burglary while on probation; (2) failing to report to his probation officer on several occasions; (3) not making any payments toward the financial obligations associated with his case; and (4) failing to complete the courtordered theft offender program.
At the probation violation hearing, Kern stipulated to the felony conviction for burglary. Further, the court learned during the hearing that Kern had four misdemeanor convictions during his probation as well. Kern admitted that he had not made any payments toward his financial obligations in this case and had missed several appointments with his probation officer. His probation officer testified that Kern did not complete the court-ordered theft offender program.
The district court revoked Kern's probation based on his new felony conviction. Kern moved the court for reinstatement of his probation, but the district court denied the motion and ordered him to serve his original sentence.
On appeal, Kern asserts that the district court abused its discretion when it revoked and declined to reinstate Kern's probation or impose an interim sanction because the court failed to consider his medical disabilities, his need for drug treatment, and his positive efforts toward serving his probation. He argues that the district court focused instead on his new conviction when it made its decision.
Probation, unless required by law, is granted as a privilege and is not as a matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). We will not overturn the district court's revocation of probation absent a finding that the district court abused its discretion. See K.S.A.2013 Supp. 22–3716(b) (the district court has the discretion to revoke probation upon an established probation violation); State v. Skolaut, 286 Kan. 219, 227–28, 182 P.3d 1231 (2008) (once probation violation established by preponderance of the evidence, the district court has the discretion to revoke probation). An abuse of discretion only occurs when a judicial action is arbitrary, fanciful, or unreasonable; based on an error of law; or 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). Kern bears the burden of demonstrating an abuse of discretion. See State v. Lowrance, 298 Kan. 274, 291, 312 P.3d 328 (2013).
K.S.A.2013 Supp. 22–3716(c)(1) states that a sentencing court may impose on a probationer an intermediate sanction before ordering the probationer to serve the underlying prison sentence. But this is not required before sending the probationer to prison if the probationer commits a new felony while on probation. K.S.A.2013 Supp. 22–3716(c)(8). We conclude that the evidence supports the district court's decision to revoke Kern's probation and to decline to reinstate it. The district court acted within its authority and discretion in revoking Kern's probation and ordering him to serve his underlying sentence.
Affirmed.