Opinion
No. 107,240.
2012-10-5
STATE of Kansas, Appellee, v. George Bernard PHELPS, Jr., Appellant.
Appeal from Shawnee District Court; Mark S. Braun, Judge.
Submitted by the parties for summary disposition pursuant to K.S.A.2011 Supp. 21–6820(g) and (h).
Before BRUNS, P.J., PIERRON and MARQUARDT, JJ.
MEMORANDUM OPINION
PER CURIAM.
George Bernard Phelps, Jr., appeals the district court's decision to extend his probation. Because we find no abuse of discretion, we affirm.
After pleading no contest, Phelps was convicted of domestic battery, third offense. Phelps was subsequently sentenced to a 12–month probation term—following 90 days in jail—with an underlying jail term of 12 months. Several months later, the State filed a motion to revoke Phelps' probation, alleging that he had failed to report to his probation officer, to remain drug free, to enter into drug treatment, to obtain a Batterer's Intervention Evaluation, and to pay court costs or perform community service.
On July 29, 2011, the district court held a probation revocation hearing. At the hearing, Phelps stipulated to failing to report to his probation officer and failing to remain drug free. At the conclusion of the hearing, the district court revoked and reinstated Phelps' probation. In doing so, the district court also extended the length of probation an additional 12 months. Thereafter, Phelps filed a timely notice of appeal.
Probation is a matter of legislative grace and is a privilege, not a fundamental right. See State v. DeCourcy, 224 Kan. 278, 280, 580 P.2d 86 (1978). The State bears the burden of establishing a violation of probation before the district court. Once it has been established that a probationer has violated the conditions of his or her probation, revocation or an extension of probation falls within the sound discretion of the district court. See State v. Graham, 272 Kan. 2, 5, 30 P.3d 310 (2001).
Accordingly, an appellate court reviews a district court's decision to revoke or extend probation under an abuse of discretion standard. See State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). An abuse of discretion occurs when the action is arbitrary, fanciful, or unreasonable. In other words, a district court abuses its discretion only if no reasonable person would have taken the action of the trial court. State v. Sellers, 292 Kan. 117, 124, 253 P.3d 20 (2011).
Here, Phelps stipulated that he failed to report to his probation officer and failed to remain drug free. Either of these stipulations could have justified revocation of Phelps' probation. As such, it cannot be said that no reasonable person would find as the district court did in this case. We, therefore, conclude that the district court did not abuse its discretion when revoking, reinstating, and extending Phelps' probation.
Affirmed.