Opinion
112,182.
06-26-2015
STATE of Kansas, Appellee, v. Marcia WEST, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Marcia West appeals from the district court's order revoking her probation and order that she serve her underlying prison sentence. We granted West's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 66). Finding no error, we affirm the district court.
Facts
On September 1, 2009, the State charged West with 3 counts of felony theft and 24 counts of misdemeanor theft. Pursuant to a plea agreement, West entered guilty pleas to the felony charges and agreed to pay full restitution on all charges. In exchange, the State agreed to dismiss the misdemeanor charges. The district court sentenced West to a 12–month term of probation with consecutive underlying prison sentences of 6 months on each count and ordered restitution in the amount of $16,924.42.
On July 22, 2010, West's probation was modified and she was ordered to serve 48 hours in jail resulting from her failure to submit monthly payments of $75.
On December 2, 2010, West was convicted of misdemeanor theft. The State did not move to revoke West's probation; instead, it transferred supervision from court services to community corrections.
On December 14, 2010, West voluntarily agreed to a 12–month extension of probation based on her failure to pay her court debt in full. Thereafter, West voluntarily agreed to three more extensions of her probation for this same reason, ultimately agreeing to remain on probation until January 4, 2016. Supervision of West's probation was transferred back to court services due to her compliance.
On March 24, 2014, the State filed a motion to revoke West's probation based on her 2010 misdemeanor theft conviction and a new felony conviction of possession of morphine. At a probation violation hearing, the State presented evidence through the testimony of Brandi Hake, West's court services officer. Hake testified that West had been convicted of possession of morphine on January 21, 2014, and placed on probation with community corrections for 18 months. Hake further testified that West also had a February 2014 theft case pending. Because West already had been afforded the opportunity of community corrections for an extended period of time and had committed new crimes while on felony probation, Hake felt that West was a community safety risk and recommended that West be ordered to serve her underlying prison sentence. Conversely, West testified as to her desire to stay on probation based on her health issues and role as the sole caregiver to her 2–year–old stepdaughter. West stated that she planned to pay restitution through her disability and social security income. West admitted to violating the terms of her probation by committing new crimes but blamed her brother or other family members for getting her into trouble. West also claimed not to remember one of the theft convictions. Based upon the evidence presented, the district court revoked West's probation and ordered her to serve her underlying prison sentence. Stating that West had been given “more than abundant opportunity” to complete probation, the court found that she had failed to take responsibility for her new convictions and was a threat to community safety.
Analysis
On appeal, West alleges that the district court abused its discretion by imposing her underlying prison sentence rather than reinstating her probation.
Unless otherwise required by law, probation from service of a sentence 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). An abuse of discretion only occurs when a judicial action is arbitrary, fanciful, or unreasonable, based on an error of law, or 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). West bears the burden of demonstrating an abuse of discretion. See State v. Lowrance, 298 Kan. 274, 291, 312 P.3d 328 (2013).
We conclude that the evidence clearly supports the district court's decision to revoke West's probation. The State presented evidence that West had committed multiple new offenses while on probation and refused to accept responsibility for these crimes. Under these circumstances, the district court was well within its discretion in revoking West's probation and ordering her to serve her underlying sentence. We find no abuse of discretion in the district court's decision.
Affirmed.