Opinion
111,712.
11-14-2014
STATE of Kansas, Appellee, v. Terrial Lynn MALIN, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Terrial Lynn Malin appeals the district court's decision revoking her probation and ordering her to serve a modified prison sentence. We granted Malin'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 October 2, 2013, Malin pled no contest to one count of distribution of methamphetamine. On December 9, 2013, the district court sentenced Malin to 40 months' imprisonment but granted probation with community corrections for 18 months.
Malm's attempt to successfully complete probation did not last very long. On January 10, 2014, the State filed a motion to revoke Malin's probation because she committed two new crimes: theft of over $800 worth of merchandise from Simply Charmed on December 22, 2013, and shoplifting from Dillons on January 8, 2014. At a hearing on January 27, 2014, Malin stipulated to violating the conditions of her probation by committing the two additional crimes. However, she asked for reinstatement to probation due to her medical conditions and age, and she asked to have the opportunity to seek counseling for her stealing. The district court revoked Malin's probation and ordered her to serve a modified sentence of 15 months in prison. Malin timely appealed.
On appeal, Malin argues that the district court abused its discretion by revoking her probation and ordering her to serve a prison sentence. Malin acknowledges that a district court has discretion to revoke probation upon a showing that the defendant violated the terms of his or her probation.
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).
Here, Malin's probation never got off the ground before she committed two new crimes. The district court showed leniency by reducing Malin's sentence from 40 months' imprisonment to 15 months' imprisonment. The district court's decision to revoke Malin'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 Malin's probation and ordering her to serve a modified prison sentence.
Affirmed.