Opinion
No. 107,308.
2012-08-31
STATE of Kansas, Appellee, v. Jarmale L. LEWIS, Appellant.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Before GREENE, C.J., PIERRON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jarmale L. Lewis appeals the district court's revocation of his probation and order he serve his underlying sentence. We granted Lewis' motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 60). Finding no error, we affirm the district court.
Factual and Procedural History
On November 24, 2008, Lewis pled guilty to one count of aggravated battery, and the district court accepted his plea. Lewis then filed a motion to depart from his presumptive prison sentence. The court granted Lewis' motion and thus sentenced him to 36 months of probation with an underlying 52–month prison sentence.
The district court, however, warned Lewis at his sentencing hearing, “One thing I want you to understand, this is your only chance. If you violate probation, you're going to the penitentiary. You will serve that fifty-two months. Is there anything you don't understand about that?” Lewis responded, “No, sir.”
About 2 years after his plea hearing, the State alleged Lewis violated his probation order. A hearing ensued, at which Lewis stipulated to violating three conditions of his probation: (1) he used cocaine; (2) he failed to report to his probation officer; and (3) he failed to obtain a new drug and alcohol evaluation.
Lewis asked the district court for a second chance and claimed that despite his mistakes, he had made progress, was gainfully employed, and could handle the responsibility of remaining on probation. The court, however, revoked Lewis' probation and ordered him to serve his underlying sentence. Lewis appeals.
Analysis
Lewis admits he violated his probation order but nonetheless argues the district court abused its discretion by ordering him to serve his underlying prison sentence. In support of this argument, he claims his 2–year stint on probation was largely successful and that he was making progress toward bettering his life.
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 district court, then it cannot be said that the district court abused its discretion. State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
The district court pointed out that Lewis had not done anything to comply with his probation order. Notably, the court told him:
“You didn't do what I told you to do from the beginning. I gave you a very, very big break at the time of sentencing. I did not send you to the penitentiary which is ... where you were supposed to be placed. I put you on probation. You threw it in my face. You are a person who was born in 1978. So you're 33 years of age. More than full grown. More than old enough to understand and realize the ramifications of your actions.”
Based on our review of the record, the district court's decision to revoke Lewis' probation was not arbitrary, fanciful, or unreasonable. Therefore, the court did not abuse its discretion by revoking his probation and ordering him to serve his underlying sentence. Accordingly, we affirm.