Opinion
No. 111,329.
2014-11-14
STATE of Kansas, Appellee, v. James Tyler LOWERY, Appellant.
Appeal from Cloud District Court; Kim W. Cudney, Judge.
Submitted for summary disposition pursuant to K.S.A.2013 Supp. 21–6820(g) and (h).
Before MALONE, C.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
James Tyler Lowery appeals the district court's decision revoking his probation and ordering him to serve his underlying prison sentence. We granted Lowery's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2013 Kan. Ct. R. Annot. 63). The State has filed no response.
On November 7, 2012, Lowery pled no contest to one count of attempted indecent solicitation of a child. On December 3, 2012, the district court sentenced Lowery to 8 months' imprisonment but granted probation with community corrections for 18 months.
On September 5, 2013, the State filed a motion to revoke Lowery's probation on multiple grounds, including allegations that he failed to complete mental health treatment and failed to abide by the conditions of his sex offender medication management program. On November 4, 2013, Lowery stipulated to violating the conditions of his probation. At the hearing, the district court made findings on the record that neither reinstatement of probation nor imposition of a graduated sanction would be in the best interest of public safety due to Lowery's improper sexual behavior and his failure to address his mental health issues. The district court revoked Lowery's probation and ordered him to serve his underlying prison sentence. Lowery timely appealed.
On appeal, Lowery argues that the district court abused its discretion by not reinstating his probation. Lowery acknowledges that once there has been a violation of probation, revocation is 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).
In revoking Lowery's probation, the district court made findings on the record that neither reinstatement of probation nor imposition of a graduated sanction would be in the best interest of public safety. Specifically, the judge stated:
“The Court has found that you are in violation of your probation, and your attorney is arguing or seeking on your behalf that this Court allow you to continue to be on probation because this is the first time you are before the Court.
“However, I consider the testimony and statements of Ms. Witt and the County Attorney's statements that you are a dangerous person, that this community safety is at risk, particularly those individuals who you at least have admitted to engaging in sex with, who were either underage or mentally incapable of making proper decisions.
“You have struggled with many issues of your probation. Many, many of the conditions you have struggled with, and clearly there are mental health issues that your attorney seeks to have—that we should address those mental health issues first.
“However, without having—you had that opportunity for treatment, and you didn't follow through with it, and without treatment, you continue to be a risk to the community.
“So it appears that you have felt these rules didn't apply to you in the past, but now you think you can follow them. This appears a, once again, to be an excuse.
“The Court finds that the evidence is that you do pose a risk factor to the community and that you have had the opportunity, abundant opportunity for mental health services. You either have failed to follow the treatment or could not abide by the rules.
“The Court finds then that your probation in this matter should be revoked, and the underlying sentence will be imposed.”
Here, the district court found and set forth with particularity reasons why the safety of the members of the public would be jeopardized by continuing Lowery on probation. Lowery does not challenge the adequacy of the district court's findings. The district court's decision to revoke Lowery'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 Lowery's probation and ordering him to serve his underlying prison sentence.
Affirmed.