Opinion
No. 106,339.
2012-05-25
STATE of Kansas, Appellee, v. David W. NEER, Appellant.
Appeal from Sedgwick District Court; Clark V. Owens, II, Judge.
Submitted by the parties for summary disposition pursuant to K.S.A. 21–4721(g) and (h).
Before HILL, P.J., PIERRON and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
David W. Neer asks us to overturn the revocation of his probation. In his motion for summary disposition of his appeal, filed in compliance with Kansas Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 60), Neer contends the district court abused its discretion when it revoked his probation. In his view, because the two stipulated violations were minor, and Neer had denied the remaining two allegations, it was abusive of the court to send him to prison. Our search of the record finds no abuse of discretion, and we affirm the district court.
After making a plea bargain with the State in 2010, Neer was convicted of reduced charges of aggravated arson, a level 6 person felony; aggravated battery, a level 7 felony; criminal threat, a level 9 person felony; and possession of marijuana after a prior conviction, a level 4 nonperson drug felony. The district court departed from the sentencing guidelines and placed Neer on probation instead of sentencing him to the presumptive prison sentence. Neer's probation was revoked and reinstated in February 2011. Then, in June 2011, the court revoked Neer's probation and ordered him to serve his underlying prison sentence because he:
1. Failed to follow through with mental health treatment, including taking all medication as prescribed;
2. continued to contact his victim despite the fact that she had told him she does not want contact with him;
3. failed to report to his intensive supervision officer as ordered; and
4. failed to make court payments.
At the probation revocation hearing, Neer admitted that he had failed to report and had failed to make payments.
The district court was most bothered by Neer's failure to follow up with treatment. The court stated, “The defendant has a history of mental health hospitalizations and suicide attempts and could benefit from medication and mental health treatment.... So a major part of this departure was for him to get the necessary mental health counseling that he needed.” Despite those concerns by the court, Neer neither presented any proof to his probation supervisor that he was receiving treatment, nor that he was taking his medication as he was required to do.
We review this question as a matter of district court discretion. 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). “Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
Neer has received many breaks already in this case. First, through a favorable plea agreement with the State, Neer received a reduction of charges, thus, greatly reducing his possible sentence. Next, the State and the district court agreed that a departure sentence was appropriate and Neer was placed on probation instead of serving his presumptive prison sentence. Finally, at Neer's first revocation hearing, the district court revoked and then reinstated his probation. All judges have their limits. We see no abuse of discretion here.
Affirmed pursuant to Rule 7.041a.