State v. Hart

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NOT DESIGNATED FOR PUBLICATION

No. 116,797


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DUSTIN D. HART,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed August
4, 2017. Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2016 Supp. 21-6820(g) and (h).

Before ARNOLD-BURGER, C.J., LEBEN, J., and BURGESS, S.J.

Per Curiam: Dustin D. Hart appeals the revocation of his probation and
imposition of his original sentence. This court granted Hart's motion for summary
disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2017 Kan. S. Ct. R.
48). Finding no error, we affirm.

Pursuant to a plea agreement, Hart pled guilty to two counts of aggravated battery.
The district court placed Hart on 24 months' probation with an underlying controlling
sentence of 36 months' imprisonment.

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The State later moved to revoke Hart's probation. At the probation revocation
hearing, Hart stipulated he failed to report to his probation officer as directed, absconded,
and committed a new offense while on probation. Based on the commission of the new
offense, the district court revoked Hart's probation and imposed his underlying sentence.

Unless otherwise required by law, probation is a privilege, not a matter of right.
State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). A district court's decision to
revoke probation involves two steps. The district court must first determine whether the
probationer has violated a condition of probation, and if a probation violation occurred,
the district court must determine whether the violation warrants revocation of probation.
State v. Skolaut, 286 Kan. 219, 227, 182 P.3d 1231 (2008).

A district court's decision to revoke probation will not be overturned absent an
abuse of discretion. 286 Kan. at 227-28. A district court abuses its discretion if its judicial
action is arbitrary, fanciful, or unreasonable; is based on an error of law; or is based on an
error of fact. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015). The party
asserting the trial court abused its discretion bears the burden of showing an abuse of
discretion. State v. Huckey, 51 Kan. App. 2d 451, 454, 348 P.3d 997, rev. denied 302
Kan. 1015 (2015).

Hart contends the district court erred when it revoked his probation and imposed
his underlying sentence. However, Hart stipulated to violating his probation. Since Hart
committed a new felony while on probation, the district court had the discretion to
impose his underlying sentence without first imposing an intermediate sanction. K.S.A.
2016 Supp. 22-3716(c)(8). The district court's decision to revoke Hart's probation was not
based on an error of law or fact. The district court's decision to revoke his probation was
not arbitrary, fanciful, or unreasonable. Therefore, the district court did not abuse its
discretion.

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Affirmed.