Opinion
No. 106,138.
2012-05-25
STATE of Kansas, Appellee, v. Gilberto LOPEZ, Appellant.
Appeal from Geary District Court; David R. Platt, Judge.
Submitted by the parties for summary disposition pursuant to K.S.A. 21–4721(g) and (h).
Before HILL, P.J., PIERRON and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Gilberto Lopez appeals the district court's revocation of his probation, contending that the district court abused its discretion in failing to find that the mitigating circumstances outweighed the stipulated violations of his probation terms. We disagree and affirm the revocation.
The record reveals that Lopez has a substantial criminal history of convictions, placement on probation, revocation of that probation, and reinstatement of probation. He was first convicted of aggravated assault in 2004 and placed on probation. Next, during his probation, he failed to obtain the required drug and alcohol evaluation, failed to remain drug-free, and was convicted of domestic battery. But despite this, the court revoked and reinstated his probation. After that, he was convicted of trafficking contraband in a penal facility in 2007, but the court again revoked and reinstated his probation. Then, in June 2009, the State moved to revoke his probation in all three cases alleging his failure to remain drug-free, failure to obtain an alcohol and drug evaluation, failure to report as directed, failure to maintain full-time employment, and failure to be truthful with his community corrections officer.
The district court conducted a hearing on the State's motion where Lopez stipulated to failing to remain drug-free, failing to report as directed, and absconding without approval. The State reviewed the history of Lopez' convictions, sentences, and probation reinstatements. The State then requested that Lopez' probation be revoked and ordered to serve his underlying sentences, stating:
“So, what does Mr. Lopez do? Well, he, [ sic ] not only uses drugs, as he [h]as stipulated to, which indicates to me that he probably engaged in the commission of other crimes.
“But then, he not only fails to report, but he absconds. He absconded, as I read the affidavits in these cases, sometime in the middle of 2009, and we have, since, had to extradite him from the State of Florida.
...
“He is not deserving of the privilege of probation. I ask that you to [ sic ] impose the sentences that were previously pronounced.”
Lopez addressed the court, stating that he had four children and “would like get a probation [ sic ] again, so I could be out there with them, and helping them.” The district court then revoked his probation in all three cases and ordered Lopez to serve the underlying controlling sentence of 62 months. Lopez appeals.
Probation from service of a sentence is an act of grace and is granted as a privilege, not as a matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Commission of a violation of probation must be established by a preponderance of the I evidence. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). Once the State has proven a violation of the conditions of probation, or the defendant has admitted such a violation, revocation is within the sound discretion of the trial court. State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). Judicial discretion is abused when it is arbitrary, fanciful, or unreasonable. State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
Here, Lopez had been given numerous chances to prove that he could obey the law and the conditions of his probation. His stipulated violations were not only numerous, they were serious—even to the point of absconding the jurisdiction. We conclude there was no abuse of discretion by the district court in revoking his probation and ordering him to serve his sentences.
Affirmed.