Opinion
111,406.
11-21-2014
STATE of Kansas, Appellee, v. Andre MEYER, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Andre Meyer appeals the district court's decision revoking his probation and ordering him to serve his underlying prison sentence. We granted Meyer'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 14, 2013, Meyer pled guilty to one count of aggravated assault. On June 18, 2013, the district court sentenced him to 24 months' imprisonment but granted probation with community corrections for 24 months. Meyer subsequently violated the conditions of his probation by failing to report and failing to refrain from contacting the victim. On October 16, 2013, the district court reinstated Meyer's probation and ordered him to serve four 2–day “quick dips” in the county jail and required him to submit to GPS tracking for 90 days.
On November 1, 2013, a warrant was filed alleging that Meyer was in violation of his probation by failing to follow the rules and regulations of the GPS monitoring system, by failing to report to his supervisor, and by absconding from probation. At a hearing on November 26, 2013, Meyer stipulated to violating the conditions of his probation. The district court determined that because of the nature of the crime, Meyer's continued contact with the victim, and his inability to follow other conditions of probation, Meyer was not amenable to probation and reinstating his probation would jeopardize public safety. The district court revoked Meyer's probation and ordered him to serve his underlying prison sentence. Meyer timely appealed.
On appeal, Meyer argues that the district court abused its discretion when it revoked his probation and imposed a prison sentence. Meyer 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 Meyer's probation, the district court made findings on the record that the safety of the members of the public would be jeopardized by continuing Meyer on probation. Specifically, the judge stated:
“The last time we were here I ordered the defendant serve—start a new 24–month probation, a new drug and alcohol evaluation, complete anger management. I gave him a two-day Quick Dips in October and two-day Quick Dips in November, GPS for 90 days when he's not in jail.
“He has prior batteries, two pages of criminal history. So the issue is whether he's demonstrated he's not amenable to probation. And under the facts and circumstances of the case, the court finds the defendant is not amenable for the probation. The court has already ordered Quick Dips. The defendant has absconded from supervision.
“Because of the nature of the crime; because of the fact of the continuing contact with the victim; because of the inability to do what has been directed, the court finds that the safety of the members of the public would be jeopardized. In addition to the fact that the defendant has been on probation less than six months and has three warrants, the welfare of the defendant would not otherwise be served. Per the court's direction, I am going to direct the defendant's probation be revoked and that he serve his sentence now.”
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 Meyer on probation. Meyer does not challenge the adequacy of the district court's findings. The district court's decision to revoke Meyer'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 Meyer's probation and ordering him to serve his underlying prison sentence.
Affirmed.