Opinion
111,043.
09-26-2014
STATE of Kansas, Appellee, v. Ernest OUTLAND, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Ernest Outland requested and was granted the right to seek summary relief under Supreme Court Rule 7.041A (2013 Kan. Ct. R. Annot. 63). Outland contends the district court abused its discretion when it revoked his probation and ordered him to serve his entire underlying sentence. We disagree and affirm.
In June 2010, Outland pled guilty to one count of possession of marijuana, a severity level 4 drug felony; one count of no drug tax stamp, a severity level 10 nonperson felony; and one count of possession of drug paraphernalia, a class A misdemeanor. The district court sentenced him to 12 months' imprisonment with 12 months' postrelease supervision but granted 18 months' probation with the condition he successfully complete mandatory drug treatment pursuant to K.S.A.2009 Supp. 21–4729 (“Senate Bill 123”).
Over the next 2 years, Outland stipulated to a number of probation violations. In each instance, the district court reinstated and extended his probation, albeit with additional conditions. Unfortunately, Outland's poor choices culminated with his arrest and the State charging him with battery in April 2012. A month later, Outland was arrested and charged with domestic battery and criminal threat; and in July 2012, Outland was arrested and charged with possession of hallucinogenic drugs and possession of drug paraphernalia. The State filed three motions to revoke Outland's probation over the course of the next 10 months.
Ultimately, Outland pled no contest to aggravated battery and misdemeanor theft on May 14, 2013. Both crimes were committed while Outland was on probation in the current case. Outland stipulated that his convictions were a violation of his probation, but he asked the court to give him another chance on probation because his outlook on life had changed over the last year, he was no longer using marijuana, and he felt like he had received a wake-up call. The district judge stated he believed that Outland felt remorse for his actions, but the judge ultimately revoked Outland's probation and ordered him to serve the underlying sentence.
At the disposition hearing, the district judge stated he gave due consideration to placing Outland on probation.
“[H]owever, all of the evidence in front of me suggests that the State, the supervision, the highest level of supervision at Community Corrections, they have exercised every option available, Mr. Outland. They have done whatever they can to provide you services and those simply have not—you have not taken advantage of those.
“The Court has reviewed the past notes in this and I find that at this point the evidence indicates that you're not amenable to probation ....“
Outland timely appeals.
We will not overturn the district court's revocation of Outland's probation absent a finding that the district court abused its discretion. See State v. Skolaut, 286 Kan. 219, 227–28, 182 P.3d 1231 (2008) (once probation violation established by preponderance of evidence, district court has discretion to revoke probation).
Outland makes no argument as to how the district court abused its discretion. He merely states that the district court erred in revoking his probation or in refusing to impose a modified prison sentence. A 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). A point raised on appeal but not argued is deemed abandoned. State v.. Anderson, 291 Kan. 849, 858, 249 P.3d 425 (2011).
Probation is an act of grace by the sentencing judge and, unless required by law, is granted as a privilege and not as a matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Outland failed to comply with the terms of his probation after his probation was revoked and reinstated on four separate occasions. There being no abuse of discretion shown or even suggested, we affirm the district court's ruling.
Affirmed.