Opinion
112,380.
04-03-2015
STATE of Kansas, Appellee, v. Patrick L. WATIE, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Patrick L. Watie appeals the district court's decision revoking his probation and ordering him to serve a modified prison sentence. We granted Watie's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 66). The State filed a response and requested that the district court's judgment be affirmed.
On December 10, 2013, Watie pled guilty to one count of possession of marijuana after a prior conviction. On January 22, 2014, the district court sentenced Watie to 37 months' imprisonment but granted a dispositional departure to probation with community corrections for 12 months. Watie did not appeal his sentence.
On April 14, 2014, an affidavit of probation violation was filed alleging that Watie had tested positive for the use of drugs on multiple occasions. At a hearing on May 30, 2014, Watie stipulated to several of the alleged violations of his probation, specifically admitting that he tested positive for the use of drugs on three occasions. Watie asked for reinstatement to probation, arguing that he needed additional treatment for an ongoing drug problem. The district court revoked Waties probation and ordered him to serve a modified prison sentence of 30 months. Watie timely appealed the probation revocation.
On appeal, Watie contends the district court erred by revoking his probation and ordering him to serve a modified prison sentence. Watie acknowledges that the decision to revoke probation rests 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). 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 Watie on probation. Although Watie completely failed on probation, the district court modified his sentence to 30 months' imprisonment. Based on the record, the district court's decision to revoke Watie'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 Watie's probation and ordering him to serve a modified prison sentence.
Affirmed.