Opinion
No. 106,657.
2012-06-29
STATE of Kansas, Appellee, v. Kristopher L. KIENZLE, Appellant.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Submitted for summary disposition pursuant to K.S.A. 21–4721(g) and (h).
Before GREENE, C.J., McANANY and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Kristopher L. Kienzle appeals the district court's revocation of his probation, arguing that the district court abused its discretion by not adequately considering his circumstances. We granted Kienzle's motion for summary disposition of a sentencing appeal pursuant to K.S.A. 21–4721(g) and (h) and Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 59). We conclude there was no abuse of discretion and thus affirm the district court's revocation of probation.
In September 2010, Kienzle pled guilty to aggravated burglary (a level 5 person felony) and to domestic battery (a nongrid person felony) in exchange for the dismissal of two other counts. The district court then sentenced him to 120 months' imprisonment and 12 months in the county jail, to run consecutively, but granted probation for 36 months.
In March 2011, a warrant was issued for Kienzle's arrest for probation violations including testing positive for use of amphetamine, admitted use of methamphetamine, admitted use of marijuana, and failure to report. Kienzle stipulated to these violations and waived his right to an evidentiary hearing. The State requested that probation be revoked and that Kienzle be ordered to serve his underlying sentence.
After hearing from counsel, the district court stated that Kienzle was “a person who loves drugs more than you do your freedom and your family.” The court noted that a departure had been made and that Kienzle had been given an opportunity to redeem himself. As a result of the violations, the court revoked Kienzle's probation and ordered him to serve the original sentence.
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). 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).
We conclude that the record on appeal clearly supports the district court's decision to revoke Kienzle's probation. Clearly, he had received a favorable plea agreement resulting in dismissal of several serious charges, and a departure for probation. 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 Kienzle's probation and ordering him to serve the balance of his sentence.
Affirmed.