Opinion
112,664 112,665.
05-29-2015
STATE of Kansas, Appellee, v. Elliott NORTON, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Elliott M. Norton appeals the district court's decision revoking his probation and ordering him to serve his underlying prison sentence in two separate cases consolidated for appeal. We granted Norton's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 66). The State filed a response and requested that the district court's judgment be affirmed.
In 13CR3102, Norton was convicted of nine counts of burglary and one count of theft. The district court imposed a controlling sentence of 18 months' imprisonment but granted a dispositional departure to probation with community corrections for 12 months. In 14CR338, Norton was convicted of two counts of burglary and one count of theft. The district court imposed a controlling sentence of 16 months' imprisonment, consecutive to his sentence in 13CR3102, but granted a dispositional departure to probation with community corrections for 12 months.
On June 17, 2014, the State filed a probation violation warrant alleging that Norton had tested positive for drugs. The warrant also alleged that Norton had failed to report to his intensive supervision officer and his current whereabouts were unknown. On June 20, 2014, the State filed a second probation violation warrant alleging that Norton had committed the new offenses of burglary and theft.
Norton subsequently stipulated to several technical violations of his probation as well as having committed a new burglary. Norton asked for reinstatement to probation, arguing that he needed treatment for an ongoing drug problem. He also asked for a sentence modification. The district court denied the request for reinstatement, revoked probation, and ordered Norton to serve his original sentences. Norton timely appealed the probation revocation.
On appeal, Norton claims the district court erred by revoking his probation and ordering him to serve his underlying prison sentences. Norton acknowledges that the decision to revoke probation rests within the district court's sound discretion.
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). The party asserting the district court abused its discretion bears the burden of showing such abuse of discretion. State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).
Here, the district court gave Norton an opportunity to stay out of prison by granting a dispositional departure to probation in two separate cases. However, Norton squandered this opportunity by violating several conditions of his probation and committing a new burglary soon after being placed on probation. The district court's decision to revoke Norton'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 Norton's probation and ordering him to serve his underlying prison sentences.
Affirmed.