Opinion
No. 108,278.
2013-04-5
STATE of Kansas, Appellee, v. Vernon WALKER, Appellant.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge.
Submitted for summary disposition under K.S.A.2012 Supp. 21–6820(g)and (h).
Before BRUNS, P.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Vernon Walker appeals from the trial court's decision revoking his probation and ordering that he serve his underlying sentence. We granted Walker's motion for summary disposition in lieu of briefs under Supreme Court Rule 7.041A (2012 Kan. Ct. R. Annot. 62). The State filed a response and asks us to affirm the trial court's decision. We affirm because the trial court did not abuse its discretion by revoking Walker's probation and ordering him to serve his underlying sentence.
Walker entered a plea and was found guilty of one count of possession of a controlled substance, a severity level 4 drug felony. In March 2011, the trial court sentenced Walker to an underlying sentence of 14 months in prison and placed him on probation with community corrections for 12 months. A probation violation warrant was issued in October 2011 and again in April 2012. The April 2012 warrant alleged that Walker was in violation of the terms and conditions of his probation by (1) being unsuccessfully discharged from his drug treatment program, (2) failing to make payments on court costs, (3) failing to complete community service work, and (4) having contact with an individual Walker was ordered to have no contact with. At the probation violation hearing held on May 16, 2012, Walker stipulated that he was in violation of conditions of his probation and waived his right to an evidentiary hearing. After finding Walker was in violation of the terms and conditions of his probation, the trial court revoked Walker's probation and ordered him to serve his underlying sentence.
On appeal, Walker claims that the trial court abused its discretion in revoking his probation. Walker notes that at the probation violation hearing he requested a second chance to address his substance abuse issues and stated he was willing to do whatever it took.
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 trial 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 trial court, then it cannot be said that the trial court abused its discretion. State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
The trial court concluded that Walker's explanation for his relapse and failure to complete drug treatment showed Walker was not amenable to probation. Under the circumstances, we cannot say the trial court's decision was arbitrary, fanciful, or unreasonable. Accordingly, we conclude that the trial court did not abuse its discretion by revoking Walker's probation and ordering him to serve his underlying sentence.
Affirmed.