Opinion
No. 107,924.
2013-01-11
STATE of Kansas, Appellee, v. Mark A. SCHUMACHER, Appellant.
Appeal from Shawnee District Court; Evelyn Z. Wilson, Judge.
Submitted for summary disposition pursuant to K.S.A.2011 Supp. 21–6820(g) and (h).
Before ATCHESON, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Mark A. Schumacher appeals the district court's revocation of his probation and the court's order he serve his underlying jail sentence. We granted Schumacher's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 60). The State filed a response asking us to affirm the district court's decision. Finding no error, we affirm the district court.
On May 24, 2011, Schumacher entered a no contest plea to one count of felony driving under the influence of alcohol, third offense. In exchange for his plea, the State agreed to dismiss another charge as well as a separate misdemeanor case. The district court sentenced Schumacher to 90 days in jail followed by 24 months of probation, with an underlying 12–month jail term.
On November 22, 2011, the State filed a motion to revoke Schumacher's probation, alleging that he had violated its terms by using alcohol, marijuana, and K2. At the subsequent revocation hearing, Schumacher stipulated to the State's allegations. Consequently, the district court revoked Schumacher's probation. The State then argued that Schumacher should be ordered to serve his underlying sentence, while Schumacher asked the court to give him another chance at probation. The district court denied Schumacher's request and ordered him to serve the underlying 12–month jail sentence.
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). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the district court, then it cannot be said that the district court abused its discretion. State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
At the probation revocation hearing, Schumacher clearly stipulated to violating the terms of his probation by using alcohol, marijuana, and K2. After careful review of the record, we find no evidence of arbitrary or unreasonable judicial action and therefore decline to find the district court abused its discretion in revoking Schumacher's probation and ordering him to serve the underlying jail sentence.
Affirmed.