Opinion
112,621 112,622.
05-29-2015
STATE of Kansas, Appellee, v. Samuel D. ROSS, Jr., Appellant.
MEMORANDUM OPINION
PER CURIAM.
Samuel D. Ross, Jr., appeals the district court's decision revoking his probation and ordering him to serve his underlying prison sentence in two separate cases consolidated for appeal. We granted Ross' motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 66). The State filed a response and requested that the district court's judgment be affirmed.
In 11CR1428, Ross pled guilty to possession of hydrocodone and possession of cocaine. On October 10, 2012, the district court imposed a controlling sentence of 18 months' imprisonment but granted a dispositional departure to probation with community corrections for 12 months. In 12CR619, Ross pled guilty to possession of cocaine and possession of methamphetamine. On October 10, 2012, the district court imposed a controlling sentence of 18 months' imprisonment but granted a dispositional departure to probation with community corrections for 12 months.
In both cases, Ross later admitted to violating his probation by committing the offense of driving on a suspended license. On January 29, 2014, the district court extended Ross' probation for an additional 6 months. Ross later stipulated to violating his probation by committing the offense of domestic battery and by violating a no contact order. On August 5, 2014, the district court revoked Ross' probation and ordered him to serve his underlying prison sentence in each case. Ross timely appealed that ruling.
On appeal, Ross claims the district court erred by revoking his probation and ordering him to serve his underlying prison sentences. Ross acknowledges that the decision to revoke probation rests within the district court's sound discretion.
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). The 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).
Here, the district court gave Ross an opportunity to stay out of prison by granting a dispositional departure to probation. The district court extended the probation on Ross' first violation. Upon violating probation for the second time by committing domestic battery and violating a no contact order, the district court revoked probation and ordered Ross to serve his original sentences. The district court's decision to revoke Ross' 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 Ross' probation and ordering him to serve his underlying prison sentences.
Affirmed.