Opinion
No. 106,341.
2012-06-8
STATE of Kansas, Appellee, v. Jeremy R. MOFFETT, Appellant.
Appeal from Sedgwick District Court; Joseph Bribiesca, Judge.
Submitted for summary disposition pursuant to K.S.A. 21–4721(g) and (h).
Before BUSER, P.J., ATCHESON, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Jeremy R. Moffett appeals the district court's revocation of his probation in four consolidated cases 08 CR 289, 08 CR 1370, 08 CR 3210 (2008 cases), and 09 CR 2091 (2009 case). His motion for summary disposition has been granted by this court. Moffett contends the district court abused its discretion in revoking his probation and requiring that he serve the underlying sentences. We affirm.
On January 16, 2009, Moffett pled guilty to two counts of forgery, one count of removal of a theft detection device, one count of misdemeanor theft, and one count of aggravated battery in the 2008 cases. The district court sentenced Moffett to a controlling 52 months' imprisonment but granted Moffett 24 months' probation. Subsequently, the State filed a motion to revoke Moffett's probation after he was charged with multiple offenses in the 2009 case. Moffett stipulated to violating the terms of his probation on July 2, 2009. The district court revoked, reinstated, and extended Moffett's probation by 24 months in each of the 2008 cases.
Six months later, on January 14, 2010, Moffett pled guilty to two counts of theft in the 2009 case pursuant to a plea agreement. The district court found Moffett guilty on both counts of theft, adopted the plea agreement sentencing him to 20 months' imprisonment to be served consecutive to the 2008 cases, and granted Moffett 12 months' probation for the 2009 case.
One year later, on January 9, 2011, while working at Five Guys Burgers and Fries, Moffett was caught on the restaurant's video surveillance system “going through [the employees'] coats individually” and disappearing out of camera view with an employee's coat containing an iPod. Later that same day, the owner of the iPod reported the iPod missing to Jay Miller, one of the owners of the restaurant. Miller reviewed the entire surveillance video for the day in question and after viewing Moffett's actions contacted the police and provided them with a copy of the surveillance video.
On January 25, 2011, the State sought a warrant to revoke Moffett's probations alleging that Moffett committed theft of the iPod and failed to provide, as was required under the conditions of his probations, verification that narcotic prescriptions for Percocet were written for him.
On May 12, 2011, the district court found, based on the evidence presented at the hearing, that Moffett had committed theft of the iPod. The district court also found that Moffett violated his probation by obtaining a prescription for narcotics without informing his intensive supervision officer. The district judge then stated:
“Well, Mr. Moffett, you know, you were on probation ... for aggravated battery when you came up in front of me for sentencing in the [2009 case]. I could have sent you to prison then. But your attorney said that you were ready to abide by conditions of probation, and I placed you on probation in the theft case.... And now you come in front of me again, and the allegation is a theft, and I have found that the State has proven that. I just don't have any confidence at all in your ability to comply with conditions of probation. By your own behavior, you've shown me to be the type of individual that, for whatever reason, you just don't have it inside of you to abide by conditions.... You just don't seem to have the self-discipline, so I'm not willing to take another chance with you.”
The district court revoked Moffett's probation in the 2008 cases and the 2009 case and ordered Moffett to serve his original sentences. Moffett timely appeals.
On appeal, Moffett alleges the district court erred in revoking Moffett's probations and reinstating his prison sentences.
Probation from serving 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.’ [Citations omitted.]” State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once the State has proven a violation of the conditions of 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. State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
The district court afforded Moffett multiple opportunities to avoid serving his prison sentences. Given the continuous violations of Moffett's probation, the record supports the district court's determination that Moffett is not amenable to probation. Accordingly, we conclude the district court did not abuse its judicial discretion in revoking Moffett's probation and requiring him to serve the underlying sentences that had been previously imposed.
Affirmed.