Opinion
Nos. 111,527 111,546.
2014-11-14
STATE of Kansas, Appellee, v. Darrell Dewayne PERRY II, Appellant.
Appeal from Montgomery District Court; Frederick William Cullins, Judge.
Submitted for summary disposition pursuant to K.S.A.2013 Supp. 21–6820(g) and (h).
Before MALONE, C.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Darrell Dewayne Perry II appeals the district court's decision revoking his probation in two separate cases and ordering him to serve his underlying prison sentences. The cases are consolidated on appeal. We granted Perry'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.
In 12CR138, Perry was convicted of one count of criminal threat. On August 14, 2012, the district court sentenced Perry to 7 months' imprisonment but granted probation for 12 months. In 12CR254, Perry was convicted of one count of aggravated battery and one count of criminal threat. On October 16, 2012, the district court imposed a controlling sentence of 24 months' imprisonment but granted probation for 24 months.
On December 10, 2013, Perry appeared in district court at a probation revocation hearing in both cases. Perry stipulated to violating the conditions of his probation by failing to complete a nonviolence program, failing to be truthful with his intensive supervision officer (ISO), and failing to remain within the area specified by his ISO. The district court revoked Perry's probation in each case and ordered him to serve his underlying prison sentences. Perry timely appealed.
On appeal, Perry contends that the district court abused its discretion by revoking his probation. He claims that his probation violations were outweighed by mitigating factors. Specifically, Perry argues that although he failed to avoid injurious habits, including the consumption of alcohol, he was involved in a nonviolence program and was working and able to support his children.
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).
Here, Perry was on probation in two separate cases involving convictions of violent offenses. The district court gave Perry a chance at probation, but he violated several conditions of his supervision, including failing to complete the nonviolence program. The district court's decision to revoke Perry'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 Perry's probation and ordering him to serve his underlying prison sentences.
Affirmed.