Opinion
No. 110,877.
2014-10-17
STATE of Kansas, Appellee, v. Danny R. THOMAS, Appellant.
Appeal from Sedgwick District Court; Jeffrey Syrios, Judge.
Submitted for summary disposition pursuant to K.S.A.2013 Supp. 21–6820(g) and (h).
Before STANDRIDGE, P.J., ATCHESON, J., and JAMES L. BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Danny R. Thomas appeals the district court's revocation of his probation and imposition of his underlying prison sentence. Thomas moved for summary disposition in lieu of briefing pursuant to Supreme Court Rule 7.041A (2013 Kan. Ct R. Annot. 63). The State filed a response to Thomas' motion, asserting the district court acted within its discretion and asking us to affirm the revocation of Thomas' probation. We granted the summary disposition motion.
On August 16, 2010, Thomas pled guilty to seven counts of computer crime, severity level 8 person felonies, in violation of K.S.A. 21–3755(b)(1)(B). The district court sentenced him to 11 months' imprisonment but granted probation for 18 months.
On February 20, 2013, after twice extending Thomas' probation for failing to pay restitution, the district court issued a warrant for Thomas' arrest based on the alleged violation of the terms of his probation. On May 31, 2013, Thomas stipulated to violating his probation conditions, and the district court continued disposition of Thomas' case to a later date.
On June 25, 2013, prior to the disposition hearing on the first probation violation, the district court issued a second warrant for Thomas' arrest for allegedly failing to obey the law. Thomas stipulated to the violation, admitting he had been charged with larceny. At the disposition hearing, Thomas' counsel communicated that Thomas desired the chance to be on probation and would welcome the chance to enter a residential facility. The district judge revoked Thomas' probation and imposed the underlying prison term, stating:
“Ultimately, Mr. Thomas, you committed a crime while on probation. And the tolerance for that is low, very low, almost nothing, particularly when it's the same nature of crime [for] which you are on probation.
“Then I look at your—reminded of your criminal history scores, of course, in your PSI. And this is what you do in terms of your criminal activity. From '96 to the present, it's bad check, theft, bad check, fraud, access fraudulent device. This is an ongoing pattern. And 1 suppose you could use all kinds of [rationales] for why all of these have been the case, but that has been the pattern for the last 17 years or so of your life. So I'm finding that you are not amenable to probation. You are out committing crimes while on probation for the same nature of crimes, which is stealing from people, taking things that are not yours, service or goods. And so I am going to revoke your probation and impose the underlying term.”
Thomas appeals.
We will not overturn the district court's revocation of Thomas' probation absent a finding that the district court abused its discretion. See K.S.A.2013 Supp. 22–3716(b), (c) (the district court has the discretion to revoke probation upon an established probation violation); State v. Gumfory, 281 Kan. 1168, Syl. ¶ 1, 135 P.3d 1191 (2006) (once probation violation established by preponderance of evidence, the district court has discretion to revoke probation).
Thomas makes no argument as to how the district court abused its discretion. He merely states that the district court erred in revoking his probation and in imposing the underlying prison sentence. A 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). Thomas has presented no particularized reason to suggest an abuse of discretion; he is simply disagreeing with the district court's decision to send him to prison based on his continuing criminal behavior.
Probation is an act of grace by the sentencing judge and, unless required by law, is granted as a privilege and not as a matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Thomas failed to comply with the terms of his probation on more than one occasion, and his probation was ultimately revoked when he was arrested and charged with larceny. There being no abuse of discretion shown or even suggested, we affirm the district court's ruling.
Affirmed.