Opinion
No. 111,641.
2014-11-21
STATE of Kansas, Appellee, v. Kyle MANWARREN, Appellant.
Appeal from Sedgwick District Court; Joseph Bribiesca, 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.
Kyle D. Manwarren appeals the district court's decision revoking his probation and ordering him to serve his underlying prison sentence. We granted Manwarren's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2013 Kan. Ct. R. Annot. 63). The State filed a response and requested that the district court's judgment be affirmed.
On May 30, 2013, Manwarren pled guilty to one count of criminal threat and one count of possession of drug paraphernalia. On July 12, 2013, the district court sentenced him to a controlling term of 13 months' imprisonment but granted a dispositional departure to probation with community corrections for 12 months.
At a hearing on February 14, 2014, Manwarren stipulated to violating the conditions of his probation by failing to pay court costs/restitution, failing to obtain and maintain full-time employment, failing to report to his intensive supervision officer (ISO), and failing to submit truthful and accurate reports to his ISO. Although Manwarren admitted to the probation violations, he asked to be admitted to the community corrections residential program to receive help with his underlying anger problems. The district court revoked Manwarren's probation and ordered him to serve his underlying prison sentence. Manwarren timely appealed.
On appeal, Manwarren argues that the district court abused its discretion when it revoked his probation. Specifically, he argues that there were sufficient mitigating factors to outweigh the probation violations.
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 Manwarren's probation, the district court noted that it had granted a dispositional departure even though there was a firearm involved in the crime. The judge made the following statements expressing a concern for public safety:
“Mr. Manwarren was a criminal history B. He was a presumptive prison category case at the time of sentencing. The Court had every intention of sending him to prison at that time, but the parties were jointly asking the Court to depart and place him on probation, even though there was a firearm involved in this matter.
....
“Now, I've read the psychological report, and it indicates that-well, it substantiates that Mr. Manwarren has had prior DV charges and that he has an anger problem. And when the discussion centered around employment, Mr. Manwarren said, quote, ‘They may find it scary to hire me and be afraid I will fly off the handle and beat them up.’
“It's obvious to the Court, based on the report, that Mr. Manwarren has a great deal of anger and a great deal of resentment toward his family, toward the family members. He blames them for his problems. He doesn't accept responsibility for his actions.
“The most elementary condition of a person that's placed on probation is that the person report. Mr. Manwarren has failed in his reporting, along with the other conditions that he's admitted to. Mr. Manwarren is not the type of individual I'm going to take another chance with.”
Here, the district court had granted Manwarren a dispositional departure to probation even though there was a firearm involved in the crime. Manwarren's psychological evaluation indicated that he remains a threat to public safety. The district court's decision to revoke Manwarren'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 Manwarren's probation and ordering him to serve his underlying prison sentence.
Affirmed.