Opinion
111,460.
11-14-2014
STATE of Kansas, Appellee, v. Tanner MORA, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Tanner Mora appeals the district court's decision revoking his probation and ordering him to serve his underlying prison sentence. We granted Mora's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2013 Kan. Ct. R. Annot. 63). The State has filed no response.
On May 30, 2012, Mora pled no contest to one count of burglary of a dwelling. The district court sentenced him to 24 months' imprisonment but granted probation with community corrections for 24 months.
On July 9, 2012, the State filed a motion to revoke probation, alleging that Mora was in violation of his probation for multiple reasons, including the commission of a new crime. On January 14, 2014, Mora stipulated that he had violated his probation based on a new felony conviction of theft in Cowley County. The district court revoked Mora's probation and ordered him to serve his underlying prison sentence. Mora timely appealed.
On appeal, Mora contends that the district court erred in revoking his probation and in imposing the underlying prison sentence. Mora acknowledges that once there has been evidence of a violation of the conditions of probation, the decision to revoke probation rests in 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 Mora's probation, the district court found that continuing Mora on probation would not be in the best interest of public safety. Specifically, the judge stated:
“All right. It's pretty obvious that Mr. Mora up to this point in time has had every opportunity to do well on probation, bond, et cetera, and he hasn't. Mr. Mora may wish to straighten his life out, I hope he does, but the way to do that is to prove that by doing his time, keeping his nose clean while he's doing his time, and then getting out and keeping his nose clean while he's on parole or whatever else he may be on, and then hopefully move beyond this cycle that he's gotten himself into.
“But I have to see for the public safety. I know Mr. Mora doesn't want to be in jail. Nobody wants to be in jail. But Mr. Mora has proven himself to be a danger to society in terms of simply not being able to control his behavior. And so I have no choice but to revoke his probation and to have him serve the remainder of his sentence on the felony charge in 12CR–5.”
Here, Mora was on probation for less than 2 months when he committed a new crime. Mora acknowledges that pursuant to K.S.A.2013 Supp. 22–3716(c)(8), if the offender commits a new felony or misdemeanor offense while on probation, the district court may revoke the probation without having previously imposed an intermediate sanction. The district court's decision to revoke Mora'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 Mora's probation and ordering him to serve his underlying prison sentence.
Affirmed.