Opinion
No. 111,678.
2014-11-21
STATE of Kansas, Appellee, v. John MITCHELL, Appellant.
Appeal from Sedgwick District Court; Douglas R. Roth, 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.
John L. Mitchell appeals the district court's decision revoking his probation and ordering him to serve his underlying prison sentence. We granted Mitchell'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 January 28, 2013, Mitchell pled guilty to one count of theft. On March 13, 2013, the district court sentenced Mitchell to 15 months' imprisonment but granted a dispositional departure to probation with community corrections for 12 months.
Six days after Mitchell's sentencing hearing, a probation violation warrant was filed alleging that Mitchell had committed a new offense of burglary. At a hearing on July 26, 2013, Mitchell stipulated to violating the conditions of his probation by committing a burglary and two counts of theft for which he subsequently was convicted. Mitchell asked for another chance at probation, arguing that his violations were the result of a drug problem that needed treatment. The district court revoked Mitchell's probation and ordered him to serve his underlying prison sentence. Mitchell timely appealed.
On appeal, Mitchell argues that the district court abused its discretion by revoking his probation and ordering him to serve his underlying prison sentence. Mitchell acknowledges that the 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, Mitchell received a dispositional departure to probation. Within 1 week of being placed on probation, Mitchell committed new crimes of burglary and theft. Pursuant to K.S.A.2013 Supp. 22–3716(c)(8), if the offender commits a new felony or misdemeanor while on probation, the district court may revoke the probation without having previously imposed an intermediate sanction. The district court's decision to revoke Mitchell'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 Mitchell's probation and ordering him to serve his underlying prison sentence.
Affirmed.