Opinion
Nos. 108,696 108,697 108,717 108,871.
2013-11-1
STATE of Kansas, Appellee, v. Andre McMILLER, Appellant.
Appeal from Saline District Court; Patrick H. Thompson, Judge.
Submitted by the parties for summary disposition pursuant to K.S.A.2012 Supp. 21–6820(g) and (h).
Before BRUNS, P.J., ARNOLD–BURGER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Andre McMiller appeals the district court's decision revoking his probation. We granted McMiller's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2012 Kan. Ct. R. Annot. 62). We conclude there was no abuse of discretion and affirm the district court's revocation of probation.
On August 12, 2008, in case number 2008–CR–159, McMiller pled no contest to one count of possession of cocaine in violation of K.S.A.2007 Supp. 65–4160(a). On February 3, 2009, the district court imposed an underlying sentence of 13 months' imprisonment but granted probation for a term of 18 months.
On July 30, 2010, McMiller pled guilty to forgery in case number 2010–CR–473 and pled guilty to theft and criminal use of a financial card in case number 2010–CR–680. Based on these guilty pleas, McMiller stipulated to violating his probation in case number 2008–CR–159. On September 14, 2010, the district court revoked and reinstated McMiller's probation in case number 2008–CR–159. Also on September 14, 2010, in case number 2010–CR–473, the district court imposed an underlying sentence of 10 months' imprisonment but granted 18 months' probation to run consecutive to 2008–CR–159. In case number 2010–CR–680, the court imposed an underlying sentence of 12 months' imprisonment but granted probation for a term of 18 months to run concurrent to case numbers 2008–CR–159 and 2010–CR–473.
On July 20, 2011, McMiller admitted to violating his probation in all three cases by failing to report as directed and missing UA appointments. The district court revoked McMiller's probation and ordered him to serve 90 days' confinement (30 days for each case) but gave McMiller the option of going to inpatient treatment if a bed became available.
On November 30, 2011, in case number 2011–CR–942, McMiller pled no contest to one count of possession of cocaine. On March 27, 2012, in that same case, the district court sentenced McMiller to 17 months' imprisonment, to run consecutively to case numbers IO–CR–473 and 08–CR–159, but granted probation for a term of 18 months. Also on March 27, 2012, McMiller admitted to violating his probation in case numbers 10–CR–680, 10–CR–473, and 08–CR–159. The district court deferred disposition on the probation violations to give McMiller a chance to follow through on the terms of his probation and to see that he was taking probation seriously.
On July 5, 2012, the court revoked McMiller's probation on all four cases because he failed to attend treatment as directed, to show up for urine testing, and to report as directed. He also admitted to using drugs and tested positive for THC and methamphetamine. The court ordered McMiller to serve his underlying sentences. McMiller timely appealed.
On appeal, McMiller argues that the district court erred in revoking his 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 and 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). “Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
Here, the district court provided McMiller with numerous opportunities to satisfy the conditions of his probation, but McMiller failed to do so. At the final probation violation hearing, the judge recounted the history of McMiller's case and stated,
“You've been given the opportunity of probation for three years. You failed to take advantage of it. This Court—previously you've been in front of ... this district court back in July of 2011 at that time there was a probation violation, found you were given a 90–day sanction to try to get your attention. Didn't work. You were given the benefit of Senate Bill 123 treatment again when you were sentenced in your latest case in March of this year. As I've noted earlier, you totally, completely failed to take advantage of that by your actions in not following through with the treatment program.
“The Court finds nothing in your history on probation that would convince the Court your behavior would be any different in the future if given another chance on probation. Court simply finds you failed [to] take your probation seriously, take advantage of this opportunity of probation to deal with the drug problems and the other issues in your life.”
We cannot say that no reasonable person would take the view adopted by the district court. The district court did not abuse its discretion by revoking McMiller's probation.
Affirmed.