Opinion
No. 107,587.
2012-11-9
STATE of Kansas, Appellee, v. Terry M. SVITAK, Appellant.
Appeal from Dickinson District Court; Benjamin Sexton, Judge.
Submitted for summary disposition pursuant to K.S.A.2011 Supp. 21–6820(g) and (h).
Before MALONE, P.J., PIERRON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Terry M. Svitak appeals the decision of the district court revoking his probation and ordering him to serve his underlying sentence. We granted Svitak's motion for summary disposition in lieu of briefs pursuant to K.S.A.2011 Supp. 21–6820(g) and (h) and 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 August 4, 2010, Svitak pled guilty to one count of possession of methamphetamine and one count of possession of marijuana. He was granted a downward dispositional departure and sentenced to 18 months' probation with an underlying term of 30 months' imprisonment. As a condition of probation, Svitak was required to complete a drug treatment program and abstain from the use of alcohol or illegal drugs.
On March 22, 2011, the State filed a motion to revoke Svitak's probation, alleging that he had failed to follow treatment recommendations and failed to remain drug-free. At the revocation hearing, Svitak stipulated to the violations. The district court revoked, reinstated, and extended Svitak's probation subject to all prior terms and conditions and with the additional condition that he reenter and successfully complete a drug treatment program.
On November 14, 2011, the State filed a second motion to revoke probation, alleging that Svitak had failed to pay any court costs and failed to report as directed. At the revocation hearing, Svitak stipulated that he had failed to pay court costs. As to the failure to report, the State presented the testimony of Svitak's probation officer. She testified that she had spoken to Svitak on August 10, 2011, and scheduled him to report on August 17. He did not come to the scheduled meeting but called the day after to explain that he had been unable to take off work. The probation officer scheduled another meeting for August 22, but he again failed to report. The probation officer further testified that Svitak had failed to provide any documentation about where he was living or working.
Svitak did not present any evidence on his own behalf, but stated during allocution that his failure to report was because he had not been made aware of any scheduled appointment to report and because he erroneously believed his probation supervision had been transferred to another county. He stated that he had stayed sober, rekindled his relationships with his children and other family members, and gained productive employment. Svitak asked for another opportunity to successfully complete his probation.
The district court accepted Svitak's stipulation as to the nonpayment of court costs and found that the State had sufficiently established the failure to report as directed. It revoked Svitak's probation, found that he was no longer amenable to probation, and ordered him to serve his underlying sentence as imposed. The district court specifically noted that Svitak had been granted a downward dispositional departure in the case and that he had previously had his probation revoked and reinstated.
On appeal, Svitak argues that the district court abused its discretion in revoking his probation. He does not contend that the State failed to sufficiently establish a violation of the terms of his probation, but argues that under State v. Duke, 10 Kan.App.2d 392, 699 P.2d 576 (1985), revocation presupposes a violation that is not outweighed by mitigating factors. Svitak claims that in his case, there were sufficient mitigating factors to outweigh the violations.
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).
Svitak'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 393–96.
Here, the district court specifically stated that it was not revoking Svitak's probation due to his failure to pay his fines but because he had failed to report despite numerous opportunities to successfully complete his probation. Furthermore, the record reflects that the district court did not find credible the explanations Svitak offered in mitigation of his failure to report, especially in light of his extensive involvement with the probation system. In the absence of any indication of arbitrary judicial action, we conclude that the district court did not abuse its discretion in revoking Svitak's probation and ordering him to serve his underlying sentence as imposed.
Affirmed.