State v. Price

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NOT DESIGNATED FOR PUBLICATION

No. 113,459

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DEREK ZACHARIHUS PRICE,
Appellant.


MEMORANDUM OPINION

Appeal from Shawnee District Court; RICHARD D. ANDERSON, judge. Opinion filed November 6,
2015. Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2014 Supp. 21-6820(g) and (h).

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

Per Curiam: Derek Zacharihus Price appeals the district court's decision revoking
his probation and ordering him to serve his underlying prison sentence. We granted
Price's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule
7.041A (2014 Kan. Ct. R. Annot. 66). The State filed a response and requested that the
district court's judgment be affirmed.

On July 18, 2013, Price pled no contest to attempted felony theft. On October 8,
2013, the district court sentenced Price to 10 months' imprisonment but granted probation
with community corrections for 12 months. Price did not appeal his sentence.

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On May 7, 2014, the State filed a motion alleging that Price violated his probation
by: (1) failing to report to his probation officer as required; (2) failing to remain law-
abiding as evidenced by a new criminal case; (3) failing to remain drug free; and (4)
failing to attend a "Think for Change" class. At a hearing on November 20, 2014, Price
stipulated to the probation violations, including the commission of new crimes. The
district court revoked Price's probation and ordered him to serve his underlying prison
sentence. Price timely appealed.

On appeal, Price claims the district court erred in revoking his probation and
ordering him to serve his underlying prison sentence. Price acknowledges that the
decision to revoke his probation rests 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
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).

K.S.A. 2014 Supp. 22-3716(c)(8) provides that if the defendant commits a new
felony or misdemeanor while on probation, the district court may revoke probation
without having previously imposed an intermediate sanction. Because Price committed
new crimes while on probation, the district court was not required to consider an
intermediate sanction before revoking his probation. The district court's decision to
revoke Price's probation was not arbitrary, fanciful, or unreasonable, and the decision was
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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 Price's probation and ordering him
to serve his underlying prison sentence.

Affirmed.