Opinion
111,961.
04-24-2015
STATE of Kansas, Appellee, v. Marshall MATTHEWS, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Defendant Marshall Matthews appeals from the Saline County District Court's order revoking his probation and directing he serve his underlying prison sentence. We granted Matthews' motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 66). The State filed a response and requested that the district court's judgment be affirmed. Finding no error, we affirm the district court.
On January 6, 2011, Matthews pled guilty to one count of possession of marijuana. In exchange, the State agreed to dismiss a possession of drug paraphernalia charge as well as charges filed in another case and to recommend that Matthews' probation be supervised by court services. On February 25, 2011, the district court sentenced Matthews to a 12–month term of probation with court services, with an underlying prison sentence of 20 months. Matthews did not appeal his original sentence.
On August 18, 2011, the State filed a motion to revoke Matthews' probation on the grounds he failed to: provide information to his supervising officer, comply with directions from his court services officer, pay all costs and fees as directed, obtain a substance abuse evaluation, submit to urinalysis testing, and complete 40 hours of community service. At a probation violation hearing, Matthews stipulated to the violations. The district court revoked and reinstated his probation, extending it for 12 months under the stricter supervision of community corrections.
On May 4, 2012, the State filed another motion to revoke Matthews' probation, alleging that Matthews had been arrested for several drug-related crimes. After Matthews was released from federal custody for those crimes, he appeared before the district court and stipulated to violating the terms of his probation. Nevertheless, Matthews argued that his probation should not be revoked because he made efforts toward improving himself while in federal custody by completing a drug education course and various adult continuing education courses and having employment available to him upon his release. Conversely, Matthews' community corrections supervising officer recommended that his probation be revoked.
After hearing argument from the parties, the district court revoked Matthews' probation and ordered him to serve his underlying prison sentence. In doing so, the court noted Matthews' “admirable” efforts to improve his situation during his federal incarceration but was not convinced that Matthews could be successful on probation given his past history and the serious nature of the crimes he committed while on community corrections.
On appeal, Matthews alleges that the district court erred by imposing the underlying prison sentence, since there were sufficient mitigating factors to outweigh the probation violation. Matthews specifically points out to us that between the acts supporting revocation and the revocation hearing, he took several classes and displayed a willingness to actively participate in the probation program.
Probation from a prison sentence is a matter of judicial lenience and, unless otherwise required by law, is granted as a privilege rather than a right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once the State has proved a violation of the conditions of probation, probation revocation rests within the sound discretion of the district court. State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). An abuse of discretion only occurs when a judicial action is arbitrary, fanciful, or unreasonable; based on an error of law; or 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). Matthews bears the burden of demonstrating an abuse of discretion. See State v. Lowrance, 298 Kan. 274, 291, 312 P.3d 328 (2013).
We conclude that the evidence supports the district court's decision to revoke Matthews' probation. Matthews stipulated to violating the terms of his probation on more than one occasion; one such violation involved the commission of federal drug crimes. Despite Matthews' positive efforts while in federal custody, his earlier actions are sufficiently inimical to the public good to support a finding he remained unsuited for probation and at substantial risk to reoffend. Under the circumstances, the district court acted within its discretion in revoking Matthews' probation and ordering him to serve his underlying sentence.
Affirmed.