Opinion
Nos. 106,204 106,369.
2012-07-6
STATE of Kansas, Appellee, v. Jessica L. CLARK, Appellant.
Appeal from Sedgwick District Court; John J. Kisner, Jr., Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney appellate division, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; John J. Kisner, Jr., Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney appellate division, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., MALONE and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jessica Clark appeals the district court's decision revoking her probation in two cases and ordering her to serve her underlying prison sentences, as modified. Finding no abuse of discretion, we affirm the district court's decision.
On July 27, 2009, Clark pled guilty to one count of possession of drug paraphernalia in case 08CR747 and one count of aggravated failure to appear in case 09CR1551. On January 7, 2010, the district court imposed consecutive prison terms of 16 months in case 08CR747 and 5 months in case 09CR1551, but the district court granted Clark 12 months' probation from her underlying prison sentences.
On March 24, 2010, the State submitted an affidavit alleging that Clark had violated the terms of her probation by submitting a positive drug test, failing to attend drug and alcohol treatment and other required classes, failing to obtain employment, failing to pay court costs, and failing to report as directed to her probation officer. At a hearing on April 21, 2010, Clark stipulated to the violations. The district court revoked, reinstated and extended Clark's probation for another year, with the additional condition that she participate in the drug court program.
On January 6, 2011, the State submitted another affidavit alleging that Clark violated the terms of her probation by missing scheduled substance abuse treatment groups on December 27, 28, and 29, 2010, and January 4, 2011; failing to submit to random drug testing on December 27, 2010, and January 4, 2011; and failing to attend drug court on December 30, 2010. At a hearing on January 14, 2011, Clark admitted that she failed to attend treatment as required, that she missed appointments with her probation officer for drug testing as required, and that she failed to attend drug court as required. The State presented the testimony of two witnesses from the drug court program to further establish the violations. Clark presented mitigating evidence on her own behalf. She testified that she had missed her treatment group and drug testing on December 27, 2010, because she mistakenly thought that day was part of the Christmas holiday. She testified she simply forgot her treatment group on December 28, 2010, because that group only met every 6 weeks. She also testified that she was confused about whether she had been promoted in her treatment program and therefore she did not understand which days she was supposed to attend. Furthermore, Clark testified that in the 2–week period during which the alleged violations occurred, she had been physically abused by her husband and had also been ill with the flu.
After hearing the evidence, the district court found that the probation violations had been sufficiently established by Clark's admissions and the evidence. As to disposition, the district court acknowledged that Clark had dealt with significant issues, including domestic abuse, which had hindered her efforts in the drug court program. Nevertheless, the district court found that Clark's repeated probation violations had shown that she was not committed to the program. The district court revoked Clark's probation and ordered her to serve her underlying prison sentences. Given the fact that Clark had some success with the program and that she had a young child, the district court modified her sentence in case 08CR747 to 13 months' imprisonment. Clark timely appealed the district court's decision revoking her probation.
On appeal, Clark contends that the district court abused its discretion in revoking her probation. She relies on a single case, State v. Duke, 10 Kan.App.2d 392, 699 P.2d 576 (1985), for the proposition that, even after a probation violation has been established, the district court must consider mitigating factors before revoking probation. The State argues that the district court was within its discretion to revoke Clark's probation and order her to serve the underlying prison sentences, as modified.
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). 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).
Clark's reliance on Duke is misplaced. In Duke, this court reversed and remanded the district court's revocation of a defendant's probation where the only violation established was the defendant's failure to pay fines and make restitution. 10 Kan.App.2d at 393–95. This court found that it is unconstitutionally impermissible to revoke an indigent defendant's probation for the sole reason that the defendant cannot make financial payments without first considering whether the defendant willfully refused to make the required payments or whether the defendant made bona fide efforts to acquire the resources to pay. 10 Kan.App.2d at 393–95.
Here, Clark's probation was not revoked because of her failure to pay the financial obligations of her probation. Furthermore, the record reflects that the district court carefully weighed Clark's mitigating circumstances but found that her repeated probation violations established that she was no longer a viable candidate for probation. Clark admitted to the violations of her probation. In the absence of any indication of arbitrary judicial action, we conclude that the district court did not abuse its discretion in revoking Clark's probation and ordering her to serve her underlying prison sentences, as modified.
Affirmed.