Opinion
Nos. 105,979 105,980 105,981 106,051.
2012-05-25
STATE of Kansas, Appellee, v. Maximilian A.R. WILSON, Appellant.
Appeal from Saline District Court; Patrick H. Thompson, Judge.
Submitted for summary disposition pursuant to K.S.A. 21–4721(g) and (h).
Before HILL, P.J., MALONE and McANANY, JJ.
MEMORANDUM OPINION
PER CURIAM.
Maximilian A.R. Wilson appeals the decision of the district court revoking his probation in four separate cases and ordering him to serve his underlying sentences. We granted Wilson's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 60). We find no abuse of discretion and affirm the decision of the district court.
On December 18, 2007, Wilson was sentenced to 24 months' probation with an underlying prison term of 24 months following his guilty plea in case number 07CR601 to one count of possession of marijuana. On July 23, 2010, Wilson was sentenced to 24 months' probation with an underlying prison term of 30 months following his guilty plea in case number 09CR6 to one count of possession of marijuana. That same day, Wilson was also sentenced to 24 months' probation with an underlying prison term of 40 months following his guilty plea in case number 09CR157 to one count of possession of marijuana with intent to sell. On August 20, 2010, Wilson was sentenced to 24 months' probation with an underlying prison term of 36 months following his guilty plea in case number 09CR840 to one count of possession of marijuana with intent to sell. In all four cases, Wilson was granted a downward dispositional departure from presumptive imprisonment to probation, with the sentences to be run consecutive to one another.
On December 21, 2010, the State filed a motion to revoke Wilson's probation in all four cases. It alleged that Wilson had failed to: (1) refrain from possessing or consuming drugs; (2) submit to urinalysis testing; (3) attend substance abuse treatment; (4) report as directed; (5) work faithfully at suitable employment; (6) be truthful with his probation officer in all matters; (7) serve 12 weekends in the Saline County Jail; (8) refrain from violating the law; and (9) obey a curfew.
On February 4, 2011, the district court held a probation revocation hearing. At the hearing, Wilson's probation officer testified as to all the violations alleged. The officer stated that Wilson “has virtually done nothing since he's been on probation. He spends a lot of time lying to us, we spend a lot of time chasing him, providing him services, he doesn't follow through. He just doesn't want to do probation, and after three years I—you know, I think we should just grant him his wish and let him go serve his sentence.” Wilson also testified on his own behalf and provided explanations for the alleged violations, although he did admit that he had used marijuana while on probation. He stated that he accepted responsibility for his mistakes and wanted to get his drug addiction under control because that was the main source of his problems.
The district court found that the probation officer's testimony was credible, that Wilson's testimony was not credible, and that the State had proved all alleged probation violations except that it had not proved a violation of the law since new cases against Wilson were still pending. The district court denied Wilson's request under State v. McGill, 271 Kan. 150, 154, 22 P.3d 597 (2001) that his sentences be modified to run concurrently rather than consecutively. It revoked Wilson's probation and ordered him to serve his sentences as imposed, noting that Wilson had been granted several downward dispositional departures and had failed to take advantage of the many chances he had been given to successfully complete probation.
Probation from serving 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). 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, Wilson himself admitted to using marijuana in violation of the terms of his probation, and the probation officer's testimony supported the district court's findings as to other violations. Wilson was given many opportunities by the district court to avoid serving a prison sentence but failed at every turn. We find no abuse of discretion in the district court's decision to revoke Wilson's probation.
Affirmed.