Opinion
No. 109,265.
2013-12-27
STATE of Kansas, Appellee, v. Julian R. SIMMS, Appellant.
Appeal from Lincoln District Court; Kim. W. Cudney, judge. Opinion filed July 19, 2013. Affirmed.
Submitted for summary disposition by the parties pursuant to K.S.A.2012 Supp. 21–6820(g) and (h).
Before GREEN, P.J., PIERRON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Julian R. Simms appeals the district court's decision revoking his probation and ordering him to serve his underlying sentence. We granted Simms' motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2012 Kan. Ct. R. Annot. 62). We affirm.
On August 17, 2010, Simms pled guilty to two reduced charges of indecent solicitation of a child, a level 6 person felony, in violation of K.S.A. 21–3510(a)(1). On September 8, 2010, the district court imposed a controlling sentence of 36 months' imprisonment and granted probation for 24 months. The court entered a lengthy list of probation requirements.
On July 27, 2011, community corrections officers obtained an order to arrest and detain based on Simms repeatedly missing appointments with his supervising officer and treatment provider. On July 28, 2011, the State filed a motion to revoke probation based on the report from the community corrections officer (CSO). The district court found the violations had occurred. The court ordered Simms to “remain incarcerated until such time as he finds employment” and also continued all the reporting requirements.
On December 1, 2011, the State filed a second motion to revoke Simms' probation based on his failure to obtain viable employment and spending his work release time engaging in activities with friends rather than seeking employment. On January 9, 2012, the district court found Simms had violated his probation but gave him yet another chance, adding requirements that he report weekly to his CSO, continue to seek full-time employment, and within 45 days from the beginning of his employment enroll in and pay the costs to attend the required sex offender treatment program.
The State filed its final motion to revoke probation on August 8, 2012. The list of Simms' probation violations was lengthy: (1) contact with the victim; (2) unapproved contact with minor children; (3) failure to complete the sex offender treatment program; (4) failure to maintain full-time employment; (5) failure to make payments on costs and fees; (6) violating the law (obstructing apprehension or prosecution); (7) travel outside his restricted area; (8) failure to complete his community service work requirement; and (9) failure to attend appointments. The district court held a full evidentiary hearing on Simms' probation revocation. Ultimately, the court revoked Simms' probation based on the violations established by the State and ordered Simms to serve his underlying sentence of 36 months in prison.
On appeal, Simms claims the district court erred by revoking his probation and ordering him to serve his underlying sentence. Simms acknowledges that the decision to revoke his probation is within the sound discretion of the district court.
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).
Here, the district court provided Simms with multiple opportunities to satisfy the conditions of his probation, but he failed to do so. At the final probation violation hearing, the judge stated, “I don't know how the court could have made it any more clear to you that it was your responsibility to comply with the privilege of probation, and you just keep blowing it off time after time.... You have excuses as to why you didn't complete your treatment or why you left your work, and excuses just don't cut it.” Based on the record on appeal, the district court's decision to revoke Simms' probation was not arbitrary, fanciful, or unreasonable. We conclude the district court did not abuse its discretion by revoking Simms' probation and ordering him to serve his underlying sentence.
Affirmed.