Opinion
No. 106,829.
2012-12-7
STATE of Kansas, Appellee, v. Ronald J. WHITE, Appellant.
Appeal from Sedgwick District Court; Eric A. Commer, Judge. Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney, appellate division, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Eric A. Commer, Judge.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney, appellate division, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., BRUNS, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Ronald J. White appeals the district court's decision revoking his probation and ordering him to serve his underlying sentence. Although he does not challenge the district court's finding that he violated the terms of his probation, White contends that he should not have been incarcerated as a result of his probation violation. Rather, White argues that the district court should have placed him in a supervised probation program to assist in his rehabilitation. Concluding that there was no abuse of discretion, we affirm the district court's decision.
After pleading guilty to removal of a theft detection device, White was sentenced to 12 month's probation with an underlying sentence of 11 months. Unfortunately, White violated his probation when he attempted to take items from a store by removing the theft detection devices. After hearing the testimony and reviewing the evidence introduced at the probation revocation hearing, the district court revoked White's probation and ordered that he be incarcerated for a period of 11 months.
On appeal, White contends that the district court abused its discretion in revoking his probation and ordering him to serve his original sentence. White argues: “It was not reasonable to put [him] in prison when supervised probation offered more positive results. Placement in a supervised program would have undoubtedly assisted in [his] full rehabilitation.” Furthermore, White argues that “[i]t is against the public policy of this state for the taxpayers of Kansas to spend thousands per year to incarcerate [him] when more effective and considerably less costly means are available .”
Probation is not a matter of right. Rather, it is an act of grace granted as a privilege by a sentencing judge. See State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once the State has proven a violation of the conditions of probation, revocation is within the sound discretion of the district court. See State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). Moreover, 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, there was sufficient evidence presented at the revocation hearing upon which a reasonable person could conclude that White violated the conditions of his probation. Specifically, there was evidence presented that White had committed additional crimes shortly after he had been placed on probation. Accordingly, after carefully reviewing the record, we find that the district court did not abuse its discretion in revoking White's probation.
Additionally, we do not find that the district court abused its discretion in ordering that White serve his underlying sentence. Based on the evidence presented at the revocation hearing, a reasonable person could conclude that incarceration was an appropriate remedy. Likewise, although supervised probation may have been more effective than incarceration, we cannot substitute our judgment for that of the district court.
We therefore conclude that the district court did not abuse its discretion either by revoking White's probation or by ordering White to serve his underlying sentence.
Affirmed.