Opinion
No. 107,964.
2013-08-29
STATE of Kansas, Appellee, v. Andrew STORER, Appellant.
Appeal from Sedgwick District Court; Joseph Bribiesca, Judge. Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Joseph Bribiesca, Judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., HILL and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
In September 2009, Andrew Storer pled guilty to aggravated robbery and possession of marijuana. The district court granted probation with an underlying controlling prison term of 216 months.
In early 2011, the State moved to revoke Storer's probation. At the evidentiary hearing on the motion, the evidence established that Storer failed to notify his supervising officer of a change in address, he failed to take his medication, he frequented drinking establishments and failed to refrain from using alcohol, and he got into fights. The district court found that Storer had violated the terms of his probation, revoked his probation, and ordered him to serve a modified 120–month prison sentence.
On appeal, Storer claims the district court abused its discretion in revoking his probation, but his arguments focus on why the court should have reinstated probation. Storer does not challenge his violations.
Storer argues that his rehabilitation would be better served by placing him back on probation and having his mental health issues addressed by a counselor in the Kansas City area. Additionally, Storer cites the high cost of incarceration and prison overcrowding as public policy reasons for reinstating his probation.
Probation 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 shown a violation of the conditions of probation, the decision to revoke probation is within the sound discretion of the district court. K.S.A.2010 Supp. 22–3716(b); State v. Skolaut, 286 Kan. 219, 227–28, 182 P.3d 1231 (2008); 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 minds 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).
Substantial competent evidence establishes that Storer violated the terms of his probation. It was within the district court's discretion to revoke Storer's probation and order him to serve a significantly reduced prison term. We find no abuse by the district court in doing so.
Storer makes an additional argument that putting him in prison is against public policy because it is costly to the State and increases prison overcrowding. Storer does not explain why this policy argument overrides the language of K.S.A.2010 Supp. 22–3716(b), which gives the court discretion to revoke a defendant's probation when a violation has been shown. Storer cites State v. Richardson, 20 Kan.App.2d 932, 943, 901 P.2d 1 (1995), in support of his public policy argument. In Richardson, a panel of this court stated that one of the legislature's purposes in enacting the sentencing statutes was to reduce prison overcrowding. 20 Kan.App.2d at 943. But the question before the Richardson court was whether a departure sentence was justified by substantial and compelling factors. Richardson is not helpful to Storer.
Affirmed.