Opinion
Nos. 108,896 108,897.
2013-07-5
STATE of Kansas, Appellee, v. Derrek M. DUHR., Appellant.
Appeal from Saline District Court; Jerome P. Hellmer, Judge.
Submitted for summary disposition pursuant to K.S.A.2012 Supp. 21–6820(g) and (h).
Before MALONE, C.J., LEBEN and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Derrek M. Duhr appeals the district court's revocation of his probation in two district court cases, and this court consolidated the cases for purposes of appeal. Duhr moved for summary disposition of his sentencing appeal pursuant to Kansas Supreme Court Rule 7.041a (2012 Kan. Ct. R. Annot. 62), and the State filed a response asking this court to affirm the revocation. This court granted Duhr's motion for summary disposition.
In August 2009, pursuant to plea agreements, Duhr pled guilty in both cases; in 09CR363, the district court convicted him of possession of marijuana, and in 09CR543, the district court convicted him of nonresidential burglary and theft. On October 19, 2009, the district court held sentencing hearings in both cases. In 09CR363, the district court sentenced Duhr to 24 months' probation, including mandatory drug treatment, with an underlying prison sentence of 15 months and 12 months' postrelease supervision. In 09CR543, the district court sentenced Duhr to 24 months' probation, with an underlying controlling prison sentence of 16 months and 12 months' postrelease supervision. The sentence in 09CR543 was ordered to run consecutive to the sentence in 09CR363.
On October 28, 2010, the State filed a motion to revoke Duhr's probation in both cases, alleging multiple probation violations. The district court held a hearing on November 19, 2010, at which Duhr stipulated to violating his probation. The district court revoked and reinstated probation, ordering Duhr to reside at an Oxford house until notified by his intensive supervision officer (ISO) and ordering him to complete an anger management course. On December 28, 2010, the State filed a second motion to revoke Duhr's probation, again alleging multiple probation violations. The district court held a revocation hearing on January 11, 2011, at which Duhr again stipulated to violating his probation. The district court once more revoked and reinstated Duhr's probation, this time ordering him to serve 30 days in jail and then enter and complete a reintegration program. In addition, the court ordered Duhr to reside in Saline County and extended his probation for 12 months.
On June 4, 2012, the State filed a third motion to revoke Duhr's probation, asserting that he violated his probation terms by failing to report as directed; failing to submit to random urinalysis testing as directed; failing to abstain from using drugs, alcohol, or mood-altering chemicals; failing to abide by his curfew; failing to obtain his ISO's guidance before changing employment or residence; and failing to keep his ISO advised of his phone number and the nature of his employment. The district court held a revocation hearing on August 16, 2012. Duhr again stipulated to violating his probation; this time, the district court revoked Duhr's probation and ordered him to serve the original underlying sentences. Duhr timely appealed.
Duhr contends that the district court abused its discretion when it revoked his probation and ordered him to serve his underlying prison sentences. “Probation from serving a sentence under Kansas law is generally considered ‘an act of grace by the sentencing judge and, unless otherwise required by law, is granted as a privilege and not as a matter of right.’ [Citation omitted.]” State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once the State has established a violation of probation, the decision to revoke lies within the sound discretion of the district court. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). A judge abuses his or her discretion when judicial action is (1) arbitrary, fanciful, or unreasonable; (2) based upon an error of law; or (3) based upon an error of fact. See State v. Stafford, 296 Kan. 25, 39–40, 290 P.3d 562 (2012).
Here, Duhr admitted to violating the terms of his probation. Moreover, the district court had revoked and reinstated Duhr's probation twice prior to ordering him to serve his original underlying sentences. The revocation was not arbitrary, fanciful, or unreasonable, nor was it based upon an error of law or fact. After thoroughly reviewing the record on appeal, we conclude the district court did not abuse its discretion in revoking Duhr's probation.
Affirmed.