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NOT DESIGNATED FOR PUBLICATION

No. 122,519

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

MATTHEW C. MCCREARY,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed January 

29, 2021. Affirmed.

Submitted by the parties for summary disposition pursuant to K.S.A. 2019 Supp. 21-6820(g) and 

(h).

Before GARDNER, P.J., SCHROEDER, J., and WALKER, S.J.

PER CURIAM: Matthew C. McCreary's probation was revoked after he admitted to 

the continuing use of illegal drugs on multiple occasions. He now appeals, claiming the 

district court abused its discretion by failing to use a less restrictive sanction than 

ordering him to serve his underlying prison sentence. We granted McCreary's motion for 

summary disposition under Supreme Court Rule 7.041A (2020 Kan. S. Ct. R. 47). The 

State responded and did not object to summary disposition. Observing no error by the 

district court, we affirm.
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FACTS

McCreary pled guilty to two counts of sexual exploitation of a child, a severity 

level 5 person felony. Based on his criminal history score of I, the district court made 

border box findings at sentencing and sentenced McCreary to 31 months' imprisonment,

suspended to 36 months' probation. Shortly after being placed on probation, McCreary 

committed various violations and received a three-day jail sanction. McCreary 

subsequently admitted to violating his probation again. The district court revoked 

McCreary's probation and ordered him to serve a 180-day jail sanction and enter a

residential treatment program following his release.

Following the completion of his most recent jail sanction, McCreary again 

admitted to violating his probation in multiple ways, including the use of 

methamphetamine. The district court, upon acceptance of McCreary's admissions,

revoked his probation and ordered him to serve the remainder of his underlying prison 

sentence. In doing so, the district court noted McCreary had numerous prior probation 

violations and the court had given him several chances to change his behavior by 

imposing graduated intermediate sanctions.

ANALYSIS

McCreary on appeal argues the district court abused its discretion by revoking his 

probation and imposing his underlying sentence. However, the record reflects during his 

probation he received multiple graduated intermediate sanctions upon his admissions to 

violating the conditions of his probation. K.S.A. 2019 Supp. 22-3716(c)(1)(C) grants the 

district court the authority to revoke McCreary's probation and order him to serve the 

remainder of his underlying sentence.
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Once the district court has determined McCreary violated the terms of his 

probation, the decision to revoke probation lies in the discretion of the district court. See 

State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). A judicial action 

constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is 

based on an error of law; or (3) it is based on an error of fact. State v. Ingham, 308 Kan. 

1466, 1469, 430 P.3d 931 (2018). McCreary bears the burden to establish an abuse of 

discretion. See State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011).

McCreary identifies no error of fact or law underlying the district court's decision

to revoke his probation. In light of McCreary's recurring probation violations, it is clear 

he was unable to comply with the terms of probation despite being given the opportunity. 

As the district court noted, the residential treatment program had the most stringent 

supervision of all available options. But even there, McCreary was unable to adhere to 

the terms of his probation.

McCreary has not demonstrated the district court's decision was arbitrary, fanciful, 

or unreasonable. The district court used its sound discretion when it revoked McCreary's 

probation and ordered him to serve the remainder of his underlying prison sentence.

Affirmed.