Opinion
No. 107,405.
2012-08-10
STATE of Kansas, Appellee, v. MICHAEL PRESSLEY, Appellant.
Appeal from Sedgwick District Court; Terry L. Pullman, Judge.
Submitted for summary disposition pursuant to K.S.A. 21–4721(g) and (h).
Before PIERRON, P.J., BUSER and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Michael Pressley appeals from two district court cases, 08 CR 3140 (2008 case) and 10 CR 1166 (2010 case). These cases have been consolidated for appeal. Pressley moved for summary disposition pursuant to Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 60). The State does not oppose Pressley's request for summary disposition, but it asks that the district court's order be affirmed. We find no error and affirm the sentences imposed by the district court.
On January 12, 2010, Pressley pled guilty in the 2008 case to possession of cocaine pursuant to K.S.A.2007 Supp. 65–4160(a). Pressley was sentenced to 12 months' probation with an underlying term of 26 months' incarceration.
On April 28, 2011, Pressley pled guilty in the 2010 case to aggravated failure to appear pursuant to K.S.A. 21–3814. He was sentenced to 12 months' probation with an underlying term of 10 months' incarceration to run consecutive to the 2008 case sentence. Pressley's probation included special conditions requiring him to report to his intensive supervision officer (ISO) as directed and to complete an alcohol and drug evaluation. The district court advised Pressley that his probation was “a zero tolerance probation for non-reporting or non-compliance with [his] drug and alcohol treatment.”
On July 20, 2011, the State sought a warrant to revoke Pressley's probations in the 2008 and the 2010 cases because he failed to report to his ISO on four occasions. The district court held a probation revocation hearing on October 6, 2011, and Pressley admitted he violated his probations. The district court revoked, reinstated, and extended Pressley's probation for 12 months.
On November 17, 2011, the State sought a second warrant to revoke Pressley's probations in the 2008 and the 2010 cases because he again failed to report to his ISO on five occasions. Pressley also failed to “maintain medication management with Comcare. His last contact with Comcare was on August 10, 2011.” On January 19, 2012, the district court held a probation revocation hearing for both the 2008 and 2010 cases. Pressley admitted to violating his probations. The district court ordered incarceration in both cases. Pressley appealed.
On appeal, Pressley contends the district court abused its discretion by not reinstating his probations.
A district court's decision to revoke probation must be based on a factual finding that a condition of probation has been violated. Once a violation has been established, the decision to revoke probation is within the discretion of the district court. State v.. Skolaut, 286 Kan. 219, 227, 182 P.3d 1231 (2008); State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). Judicial discretion is abused when the action is arbitrary, fanciful, or unreasonable. Judicial discretion is abused when no reasonable person would agree with the district court's actions. State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009). Probation from serving a sentence is “ ‘an act of grace by the sentencing judge and, unless otherwise required by law, is granted as a privilege and not a matter of right.’ [Citations omitted.]” State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006).
The district court afforded Pressley multiple opportunities to avoid serving his prison sentences. A reasonable person could conclude that Pressley's multiple violations within a short period of time after being placed on the probations showed he was not amenable to probation. The district court's findings are supported by the evidence, and we hold that the district court did not abuse its discretion in revoking Pressley's probations and imposing incarceration.
Affirmed.