Opinion
111,490.
11-14-2014
STATE of Kansas, Appellee, v. Sherry MULDER, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Sherry M. Mulder appeals from the trial court's order revoking her probation and ordering her to serve the underlying prison sentence. Finding the court did not abuse its discretion, we affirm.
Mulder pled guilty to burglary and misdemeanor theft charges stemming from an incident where Mulder stole items from a pickup truck. On August 29, 2012, Mulder was sentenced to a controlling term of 11 months in prison with 12 months of postrelease supervision. The sentence was suspended in favor of 12 months' probation.
As part of her probation, Mulder was ordered to report to the adult probation office immediately upon her release from custody. She failed to report, and a warrant was issued for her arrest. The warrant was not executed until February 5, 2013.
At the March 14, 2013, probation revocation hearing, Mulder waived her right to an evidentiary hearing and stipulated that she had violated her probation by not reporting. The State recommended that Mulder serve the underlying sentence because she failed to report immediately after she was released from custody and then absconded for nearly 5 months. The State also noted that Mulder did not report to pretrial services as required by a condition of her bond. The court ordered Mulder to serve her original underlying sentence, finding her multiple failures to report made her not amenable to probation.
On March 15, 2013, Mulder timely appealed her probation revocation. This court granted Mulder's request for leave to proceed without briefing under Supreme Court Rule 7.041A. (2013 Kan. Ct. R. Annot. 63).
Once there has been evidence of a violation of the conditions on which probation was granted, the decision to revoke probation rests in the sound discretion of the trial court. State v. Gumfory, 281 Kan. 1168, Syl. ¶ 1, 135 P.3d 1191 (2006). A court abuses its discretion only if the court's action
“(1) is arbitrary, fanciful, or unreasonable, i.e., no reasonable person would take the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594.
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). Based on Mulder's multiple failures to report, the trial court did not abuse its discretion in revoking her probation and ordering her to serve the underlying sentence.
Affirmed.