State v. Howard

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NOT DESIGNATED FOR PUBLICATION

No. 116,096

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RUSSELL W. HOWARD,
Appellant.


MEMORANDUM OPINION

Appeal from Brown District Court; JAMES A. PATTON, judge. Opinion filed December 16, 2016.
Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2015 Supp. 21-6820(g) and (h).

Before MALONE, C.J., PIERRON and BRUNS, JJ.

Per Curiam: Russell W. Howard appeals the district court's decision revoking his
probation and ordering him to serve his underlying prison sentence. We granted Howard's
motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A
(2015 Kan. Ct. R. Annot. 67). The State has filed no response.

On April 22, 2013, Howard pled no contest to one count of possession of
methamphetamine and one count of possession of marijuana. On October 28, 2013, the
district court imposed a controlling sentence of 17 months' imprisonment but granted
probation with community corrections for 12 months.

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At a subsequent hearing, Howard stipulated to violating his probation on
numerous grounds including failing to report to his probation officer and failing to
abstain from drugs. The district court extended Howard's probation for 12 months and
imposed a 10-day jail sanction to be served over 5 weekends.

At a subsequent hearing, Howard again stipulated to violating his probation on
numerous grounds including failing to report to his probation officer, failing to abstain
from drugs, failing to submit to a drug test, and failing to serve imposed jail time. The
district court again extended Howard's probation for 12 months and ordered him to serve
a 120-day sanction with the Department of Corrections.

Finally, at a hearing on May 23, 2016, Howard again stipulated to violating his
probation by failing to report to his probation officer and by failing to abstain from drugs.
Howard asked that he be given another chance to complete his probation. However, the
district court revoked Howard's probation and ordered him to serve his underlying prison
sentence. Howard timely appealed.

On appeal, Howard contends that the district court erred by revoking his
probation. Specifically, Howard argues that the district court's decision to revoke
probation did not adequately address his drug addiction, which is the underlying cause of
his legal troubles. Howard acknowledges that the decision to revoke probation rest within
the district court's sound discretion.

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
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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 gave Howard three chances to complete his term of
probation. After Howard failed to successfully complete the conditions of his probation
for a third time, the district court ordered him to serve his underlying sentence. The
district court's decision to revoke Howard'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
Howard's probation and ordering him to serve his underlying prison sentence.

Affirmed.