Opinion
No. 110,969.
2014-10-24
STATE of Kansas, Appellee, v. Mark J. WILSON, Appellant.
Appeal from Shawnee District Court; Cheryl Rios Kingfisher, Judge.
Submitted for summary disposition by the parties pursuant to K.S.A.2013 Supp. 21–6820(g)and (h).
Before BRUNS, P.J., PIERRON and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Mark J. Wilson appeals from the district court's order revoking his probation and ordering him to serve the underlying sentence. Finding the court did not abuse its discretion, we affirm.
In case No. 11–CR–1672, Wilson pled no contest to aggravated battery for beating up his girlfriend, and attempted violation of the Offender Registration Act, involving a prior conviction of sexual battery. The State dismissed a second case, 11–CR–1778, pursuant to the plea negotiations. On February 6, 2012, Wilson received 24 months of probation with a total underlying prison term of 42 months.
The day after the district court granted Wilson probation, the State charged him in a new aggravated battery case against his girlfriend, case No. 12–CR–1226. Based on the new case, the State filed its first motion to revoke Wilson's probation with a supporting affidavit from Wilson's probation officer. The State alleged that Wilson had failed to remain a law-abiding citizen. The State dismissed the first motion but later filed a second motion to revoke Wilson's probation with a supporting affidavit from his probation officer. The State alleged that Wilson had violated his probation by committing a new criminal offense. Specifically, the State charged Wilson in case 12–CR–1226 with aggravated battery in a domestic situation. Wilson had again attacked his girlfriend. On March 4, 2013, Wilson pled no contest to the charge. As part of the plea agreement in 12–CR–1226, Wilson stipulated to the violations of his probation in 11–CR–1672. On May 30, 2013, the court held a joint sentencing/revocation hearing for the two cases. At the hearing, the court revoked Wilson's probation in 11–CR–1672 based on his new conviction. The court directed the original 42–month sentence to be served.
For sentencing in 12–CR–1226, the district court found Wilson had received the benefit of a reduced charge from a level 1 person felony down to a level 8 felony. The court also found Wilson had never accepted responsibility for his actions. The court sentenced Wilson to 21 months imprisonment. The court ordered the sentences in 1 l–CR–1672 and 12–CR–1226 to run consecutively.
On June 13, 2013, Wilson timely appealed the revocation of his probation. This court granted Wilson's request for leave to proceed without briefing under Supreme Court Rule 7.041A. (2013 Kan. Ct. R. Annot. 63).
Once there has been evidence of a violation of the conditions on which probation was granted, the decision to revoke probation rests in the sound discretion of the district court. State v. Gumfory, 281 Kan. 1168, Syl. ¶ 1, 135 P.3d 1191 (2006). A court abuses its discretion only if the court's action:
“(1) is arbitrary, fanciful, or unreasonable, i.e., no reasonable person would take the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied, 132 S.Ct. 1594.
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). Based upon Wilson's actions in continuing to violate the law and the terms of his probation immediately after being granted probation, the district court did not abuse its discretion in revoking his probation and ordering him to serve the underlying sentence.
Affirmed.