Opinion
No. 111,920.
2014-12-19
STATE of Kansas, Appellee, v. Albert J. SCOTT, III, Appellant.
Appeal from Nemaha District Court; James A. Patton, Judge.
Submitted for summary disposition pursuant to K.S.A.2013 Supp. 21–6820(g) and (h).
Before MALONE, C.J., GREEN and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Albert J. Scott appeals the district court's decision revoking his probation and ordering him to serve his underlying prison sentence. We granted Scott's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 66). The State has filed no response.
On November 29, 2012, Scott pled no contest to one count of aggravated indecent solicitation of a child. On December 20, 2012, the district court sentenced Scott to 57 months' imprisonment but granted a dispositional departure to probation with community corrections for 60 months. Scott did not appeal his sentence.
On November 22, 2013, an affidavit of probation violation was filed alleging that Scott had tested positive for the use of drugs. At a hearing on December 19, 2013, Scott admitted to violating the conditions of his probation as set forth in the affidavit. The district court continued the matter for a disposition hearing that ultimately was held on February 27, 2014. At that hearing, the district court revoked Scott's probation and ordered him to serve his underlying prison sentence. Scott timely appealed.
On appeal, Scott alleges the district court erred by imposing the underlying sentence because there were sufficient mitigating factors to outweigh the probation violation. Scott notes that his probation violation was related to drug use and that, with treatment, he could be a productive member of society.
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 granted a dispositional departure when it placed Scott on probation. In revoking Scott's probation, the judge stated, “[Scott's] been on probation on numerous occasions and has not been successful.... He asks for one more chance to become a model citizen but his behavior doesn't warrant it.” The district court also noted that Scott's attitude was poor while he was incarcerated in jail pending the hearing. Based on the record, the district court's decision to revoke Scott's 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 Scott's probation and ordering him to serve his underlying prison sentence.
Affirmed.