Opinion
No. 111723.
07-17-2015
STATE of Kansas, Appellee, v. Kendre L. PORTER, Appellant.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Heather Cessna, of Kansas Appellate Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Kendre L. Porter appeals the district court's decision revoking his probation and ordering him to serve his underlying prison sentence, including lifetime postrelease supervision. Porter claims that: (1) lifetime postrelease supervision constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights ; (2) the district court erred by ordering him to serve his underlying sentence without imposing an intermediate sanction under K.S.A.2013 Supp. 22–3716(c) ; and (3) the district court abused its discretion by revoking his probation and ordering him to serve his underlying prison sentence. We agree with Porter on his second claim that the district court erred by ordering him to serve his underlying sentence without imposing an intermediate sanction or making appropriate findings to circumvent such sanctions. Thus, we remand to the district court for a new dispositional hearing on Porter's probation revocation.
On May 29, 2012, sometime between 4 and 5 a.m., Porter was walking outside and passed by P.C.T.'s window. Through that window, Porter saw P.C.T. lying in her bed. Porter watched P.C.T. for 3–5 minutes and decided that he wanted sex. Porter entered P.C.T.'s residence through the window, pulled down his pants, and got into bed with her. P.C.T. was asleep next to her infant daughter. P.C.T. awoke to find Porter touching her leg. He was lying next to her with his pants down and his erect penis exposed. P.C.T. told Porter to leave, but he continued to touch her leg and tried to push her legs apart to have sex with her. Porter kissed both sides of P.C.T.'s neck and she pushed him away. P.C.T.'s daughter woke up and P.C.T. pulled the infant onto her lap. Porter stood up and tried to force P.C.T.'s head toward his penis. P.C.T. told him “no” and pulled away. After telling Porter to leave several more times, P.C.T. was able to talk him into leaving her residence.
On June 5, 2012, the State charged Porter with attempted rape, a severity level 3 person felony; attempted aggravated criminal sodomy, a severity level 3 person felony; and aggravated burglary, a severity level 5 person felony. On December 6, 2012, Porter pled guilty to two reduced charges of aggravated sexual battery and one count of aggravated burglary—all severity level 5 person felonies. During an extended colloquy with the district court, Porter answered affirmatively when asked if he had committed each element of the charged offenses, thereby establishing a factual basis for the plea. On January 9, 2013, the district court imposed a controlling sentence of 36 months' imprisonment with 24 months' postrelease supervision. The district court made border box findings and placed Porter on probation with community corrections for 36 months.
On July 16, 2013, the State issued a warrant alleging that Porter had violated the terms and conditions of his probation as follows:
“1. On June 17, 2013, the defendant submitted a urine sample which tested positive for cannabinoids. National Toxicology Laboratories confirmed this test on July 9, 2013, for THC Metabolite at 100ng/ml.
“2. The defendant has failed to begin sex offender treatment since completing drug/alcohol treatment on May 17, 2013.
“3. The defendant has failed to obtain full-time employment since being placed on probation on January 9, 2013.
“4. On July 5, 2013, the defendant admitted to his ISO that he has associated with persons engaged in illegal activity (i.e., illegal drug use).”
Prior to the hearing on Porter's alleged probation violations, the State filed a motion to correct illegal sentence. In that motion, the State asserted that Porter's sentence of 24 months' postrelease supervision was illegal because the mandatory term of postrelease supervision for persons convicted of a sexually violent crime, committed on or after July 1, 2006, is for the duration of the person's natural life. Porter responded with a motion contending that lifetime postrelease supervision constituted cruel and unusual punishment contrary to the provisions of the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights.
At a hearing on November 15, 2013, the district court ultimately found that Porter's original sentence of 24 months' postrelease supervision was illegal. It next considered Porter's constitutional arguments and conducted an analysis of the Freeman factors. See State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). The district court found that none of the Freeman factors weighed in Porter's favor and determined that the imposition of lifetime postrelease supervision in Porter's case was not unconstitutional.
At Porter's probation violation hearing on November 22, 2013, the district court corrected Porter's illegal sentence by imposing lifetime postrelease supervision. The district court then addressed Porter's alleged probation violations. Porter waived his right to an evidentiary hearing and stipulated to each of the probation violations alleged in the State's warrant. Defense counsel asked the district court to reinstate Porter's probation. After hearing arguments of counsel, the district court revoked Porter's probation and ordered him to serve his underlying prison sentence. Porter timely appealed the district court's judgment.
Lifetime Postrelease Supervision
In his first issue on appeal, Porter contends that a lifetime term of postrelease supervision is grossly disproportionate to the nature of his offense and his character and thus constitutes cruel and unusual punishment. Specifically, Porter contends that his sentence of lifetime postrelease supervision violates the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. The State responds that the district court correctly determined the imposition of lifetime postrelease supervision in Porter's case was constitutional.
It is undisputed that K.S.A.2012 Supp. 22–3717(d)(l)(G) mandates that a person convicted of a sexually violent crime must “be released [from prison] to a mandatory period of postrelease supervision for the duration of the person's natural life.” Furthermore, it is undisputed that pursuant to K.S.A.2012 Supp. 22–3717(d)(2)(I), aggravated sexual battery is a sexually violent crime.
The constitutionality of a sentencing statute is a question of law subject to unlimited review. State v. Hilt, 299 Kan. 176, 202, 322 P.3d 367 (2014). Generally, a defendant must raise a specific constitutional challenge to the statute before the sentencing court to preserve the issue for appeal. State v. Sellers, 292 Kan. 117, 131, 253 P.3d 20 (2011), modified on other grounds 292 Kan. 346, 360, 253 P.3d 20 (2011).
The Eighth Amendment to the United States Constitution, which the Fourteenth Amendment makes applicable to the States, provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (Emphasis added.) Similarly, § 9 of the Kansas Constitution Bill of Rights states in part: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.” (Emphasis added.)
The United States Supreme Court has interpreted the Eighth Amendment to find that “[e]mbodied in the Constitution's ban on cruel and unusual punishments is the ‘precept of justice that punishment for crime should be graduated and proportioned to [the] offense.’ [Citation omitted.]” Graham v. Florida, 560 U.S. 48, 59, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Our Supreme Court has interpreted § 9 of the Kansas Constitution Bill of Rights to allow a challenge to an “excessive or disproportionate sentence.” State v. McDaniel & Owens, 228 Kan. 172, 185, 612 P.2d 1231 (1980).
Regarding proportionality challenges to a term-of-years sentence, our Supreme Court has described two general categories: “The first classification involves challenges that argue the term of years is grossly disproportionate given all the circumstances in a particular case. The second classification comprises cases in which the court implements the proportionality standard by certain categorical restrictions.” State v. Gomez, 290 Kan. 858, Syl. ¶ 4, 235 P .3d 1203 (2010). Here, Porter argues that the sentence is disproportionate because of the nature of the offense and character of the offender, based on a comparison of the punishment to other punishments our legislature has assigned to other offenses, and in light of the punishment for similar crimes in other states.
Recently, the Kansas Supreme Court filed two decisions that address similar constitutional arguments regarding mandatory lifetime postrelease supervision sentences under K.S.A. 22–3717(d)(1)(G) —State v. Cameron, 294 Kan. 884, 281 P.3d 143 (2012), and State v. Mossman, 294 Kan. 901, 281 P.3d 153 (2012). In both cases, our Supreme Court rejected arguments similar to those asserted by Porter in the present case. In doing so, both issues were analyzed under the factors set forth in Freeman, 223 Kan. at 367.
In Freeman, the Kansas Supreme Court set out the following three factors to be considered in determining the proportionality of a sentence:
“(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;
“(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and
“(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.” 223 Kan. at 367.
None of the Freeman factors is controlling. As long as each factor is considered, one consideration can direct the final conclusion if it weighs heavily enough. State v. Ortega–Cadelan, 287 Kan. 157, 161, 194 P.3d 1195 (2008). Only the first Freeman factor requires consideration of the individual facts of a case. “Particularly where arguments focus upon proportionality ... the factual aspects of the test are a necessary part of the overall analysis.” Ortega–Cadelan, 287 Kan. at 161.
Regarding the first Freeman factor, Porter contends that his crime was less severe than other sexually violent crimes subject to the imposition of lifetime postrelease supervision because: (1) he was only 18 years old at the time of commission; (2) he mistakenly entered the victim's residence, believing that it belonged to someone else; (3) the touching in his case was “minor”—“a kiss on the neck and a touch on her leg”; (4) the victim was not physically harmed during the ordeal; and (5) the incident resulted from alcohol use. Porter concludes that the district court's ruling was erroneous because, considering the nature of the offense and his character, the sentence is so disproportionate that it shocks the conscience and offends fundamental notions of human dignity.
However, the Kansas Legislature has determined that sexually violent crimes deserve mandatory lifetime postrelease supervision, and statutes are presumed to be constitutional. See State v. Woodard, 294 Kan. 717, 720, 280 P.3d 203 (2012) ; State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 (2009). Additionally, it is not this court's role “to criticize the legislature or to substitute its view on economic or social policy; it is the duty of this court to safeguard the constitution.” See State ex rel. Six v. Kansas Lottery, 286 Kan. 557, 562, 186 P.3d 183 (2008).
Here, according to the State's response to Porter's motion for determination that mandatory lifetime postrelease supervision was unconstitutional, the incident leading to the charges of aggravated sexual battery consisted of
“a stranger [Porter] breaking into a woman's apartment through the window. He admitted that he didn't know her but after watching her through the window for 3–5 minutes, he wanted sex. He broke in, pulled down his pants and got into bed with her. He then tried to force her legs apart and kiss her with her infant daughter lying next to her. The victim was able to push him away and told him that he needed to leave. He continued to try and force her to perform oral sex on him but she was able to push him away. After telling him to leave several more times, the woman was able to talk the defendant into getting out of her apartment.”
Although Porter claims in his appellate brief that he merely kissed the victim's neck and touched her leg, the district court adopted the more extensive factual statement recited above with no objection. This court cannot weigh the evidence on appeal. See Mossman, 294 Kan. at 906. Thus, we find that substantial competent evidence supports the district court's findings and that the first Freeman factor weighs against Porter.
The second Freeman factor requires comparing a challenged punishment with punishments imposed in the same jurisdiction for more serious offenses. Under this factor, if a more serious crime is punished less severely than the offense in question, its penalty is suspect. Freeman, 223 Kan. at 367. Here, the district court determined:
“There are some comparisons with more egregious crimes. As [defense counsel] point out [sic ], murder, for example. But the state and—our United States Constitution [sic ] goes on to state that convicted sex offenders are dangerous as a class.
“And I hope you won't be when you get out. But they do pose a risk of recidivism, which means you have a higher propensity to repeat that. And, hopefully, it isn't true for you, sir. But the recidivism is frighteningly high. And that's the Smith v. Doe case.
“And the Kansas legislature has determined that sexually violent crimes deserve mandatory lifetime postrelease supervision and statutes are presumed to be constitutional. And that is referring to the State v. Woodward—Woodard—excuse me—case, 294 Kan. 717, and the State v. Laturner case, 289 Kan. 727.”
Porter contends that the postrelease restrictions on his freedom for aggravated sexual battery are greater than those imposed upon someone convicted of murder or other crimes of a higher severity. But this court and our Supreme Court previously have found that such sentences were not so grossly disproportionate as to be unconstitutional, especially when viewed in light of their penological purpose and the seriousness of the crime. See Mossman, 294 Kan. at 917 ; Cameron, 294 Kan. at 892–93 ; State v. LazoGaitam, No. 103,818, 2013 WL 678205, *4 (Kan.App.2013) (unpublished opinion).
As the Kansas Supreme Court has found, “there are ‘grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class. The risk of recidivism posed by sex offenders is “frightening and high.’ “ “ Mossman, 294 Kan. at 909–10 (quoting Smith v. Doe, 538 U.S. 84, 103, 123 S.Ct. 1140, 155 L.Ed.2d 164 [2003] ). Based on our Supreme Court's analysis in Mossman, we agree with the district court's conclusion that the second Freeman did not weigh in Porter's favor.
The third Freeman factor requires a comparison of the sentence imposed with punishments in other jurisdictions for the same offense. Freeman, 223 Kan. at 367. Although Porter concedes that “a handful” of other jurisdictions require lifetime postrelease supervision sentences, he argues that most of the states allow for the possibility of discharge or release from lifetime postrelease supervision. According to Porter, “[t]here is not a national consensus for mandatory lifetime postrelease supervision without the possibility of release or discharge for this class of offense, aggravated sexual battery of an adult.”
In Mossman, after a lengthy exploration of the punishment for violent sex offenses in other jurisdictions, the Kansas Supreme Court found:
“[I]t seems fair to say that less than half of states provide for lifetime postrelease supervision of some or all sex offenders and, because several states have a mechanism for termination of the postrelease supervision under certain conditions, only a handful of states impose punishment as absolute as Kansas' requirement. Nevertheless, Kansas is not alone in imposing mandatory lifetime postrelease supervision for crimes such as Mossman's, and we are not aware of any court that has found lifetime postrelease supervision of a violent sex offender to be cruel and unusual punishment.” 294 Kan. at 920.
The Kansas Supreme Court has not specifically compared the punishment for aggravated sexual battery in Kansas to punishment for similar crimes in other jurisdictions. But this court has previously found the analysis in Mossman regarding the third Freeman factor to be equally applicable in an aggravated sexual battery case. See Lazo–Gaitam, 2013 WL 678205. Thus, even though the punishment for sexually violent offenders in Kansas may be more severe than in other jurisdictions, based on our Supreme Court's analysis in Mossman, we agree with the district court's conclusion that the third Freeman factor did not weigh in Porter's favor.
Finally, as the State points out, Porter “makes no distinct Eighth Amendment argument on appeal, but appears to rely on his § 9 arguments to cover the Eighth Amendment analysis.” However, the Kansas Supreme Court has found that an analysis under the Freeman factors can be applied “with equal force to the first of the classifications for an Eighth Amendment challenge.” State v. Ross, 295 Kan. 424, 429, 284 P.3d 309 (2012). Citing Ross, Porter correctly concludes that his Eighth Amendment argument has not been abandoned. However, relying on the same analysis that the district court provided under the first Freeman factor, we conclude that lifetime postrelease supervision for Porter's conviction of aggravated sexual battery is deemed to be graduated and proportioned to the offense so as not to violate the Eighth Amendment to the United States Constitution.
In summary, we conclude that the imposition of mandatory lifetime postrelease supervision in Porter's case does not constitute cruel and unusual punishment under the Eighth Amendment to the United States Constitution or cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights. Consistent with the analysis set forth by our Supreme Court in Mossman and Cameron, we reject Porter's challenge to the constitutionality of his lifetime postrelease supervision. See also Lazo–Gaitam, 2013 WL 678205 (holding that lifetime postrelease supervision for aggravated sexual battery was not cruel and unusual punishment so as to violate § 9 of the Kansas Constitution Bill of Rights or the Eighth Amendment to United States Constitution).
Probation Revocation Without Considering Intermediate Sanctions
Porter next challenges the district court's decision revoking his probation and ordering him to serve his underlying sentence. For the first time on appeal, he argues that the district court erred by ordering him to serve his underlying sentence without imposing an intermediate sanction under K.S.A.2013 Supp. 22–3716(c). Porter asks this court to remand his case for a new dispositional hearing.
Preservation of the issue
As a threshold matter, the State contends that Porter has improperly raised this issue for the first time on appeal. At the probation revocation hearing, Porter asked the district court to reinstate his probation, while the State asked the district court to order Porter to serve his underlying sentence. Neither party mentioned the graduated sanction framework in K.S.A.2013 Supp. 22–3716(c).
Generally, issues not raised before the district court cannot be raised on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). There are several exceptions to this general rule, including the following: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the judgment of the district court may be upheld on appeal despite its reliance on the wrong ground or having assigned a wrong reason for its decision. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).
Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40) requires an appellant to explain why an issue that was not raised below should be considered for the first time on appeal. Litigants who fail to comply with this rule risk a ruling that the issue is improperly briefed and will be deemed waived or abandoned. See State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014) (cautioning future litigants to comply with rule); State v. Godfrey, 301 Kan. 1041, ––– P.3d, ––––, 2015 WL 3439127 (2015).
In State v. Klima, No. 110,660, 2014 WL 3843473 (Kan.App.2014) (unpublished opinion), pet. for review filed August 29, 2014, this court found that a challenge to a district court's purported failure to implement the graduated sanction framework in K .S.A.2013 Supp. 22–3716(c) was not properly before it because the issue was not first presented to the district court. In Klima, the defendant did not acknowledge his failure to raise his graduated sanction argument in district court, nor did he assert any of the exceptions to the general rule preventing him from raising this issue for the first time on appeal. 2014 WL 3843473, at *2–3. In declining to address Klima's issue on the merits, this court noted our Supreme Court's recent decision in Williams, which explicitly reminded parties of the importance of complying with Rule 6.02(a)(5). 2014 WL 3843473, at *3 (citing Williams, 298 Kan. at 1085–86 ).
Here, Porter filed a reply brief addressing the State's contention that this issue had not been properly preserved for appellate review. In his reply brief, Porter discusses the exceptions to the general rule that appellate courts cannot consider issues raised for the first time on appeal. Because he is challenging the district court's authority to impose his underlying prison sentence and revoke his probation without first considering the applicable intermediate sanctions, Porter asserts that this issue is a question of law arising on proved or admitted facts and is finally determinative of the case.
Porter's argument is consistent with this court's decision in State v. Lane, No. 111,110, 2015 WL 802739 (Kan.App.2015) (unpublished opinion). In Lane, this court found that the applicability of K.S.A.2013 Supp 22–3716(c), in the context of a district court's decision to revoke the appellant's probation and impose his underlying sentence, involved only a question of law on proved or admitted facts and was finally determinative of the issue. Furthermore, this court found that consideration of the issue would serve the ends of justice by effectuating a consistent interpretation of the legislative intent expressed in the statute. Consistent with this court's decision in Lane, we will address the merits of Porter's argument that the district court erred by ordering him to serve his underlying sentence without first considering the intermediate sanctions set forth in K.S.A.2013 Supp. 22–3716(c).
Analysis on the merits
Porter argues that the district court erred by revoking his probation and ordering him to serve his underlying sentence without first imposing an intermediate sanction pursuant to K.S.A.2013 Supp. 22–3716(c)(1)(C) or (D). The State replies that K.S.A.2013 Supp. 22–3716(c) is not applicable to probationers, such as Porter, who committed their crimes of conviction prior to July 1, 2013.
Generally, a district court's decision to revoke probation is reviewed under an abuse of discretion standard. See State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). To the extent that Porter's arguments involve statutory interpretation, this court's review is de novo. See State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014).
In 2013, the Kansas Legislation amended K.S.A. 22–3716 and created a system of graduated sanctions to be imposed when an offender violates a condition of probation in certain cases. In Klima, this court explained the changes resulting from those amendments:
“Generally speaking, K.S.A.2013 Supp. 22–3716(c) allows a district court, upon finding that an offender originally convicted of a felony has violated a condition of a nonprison sanction, to impose a graduated series of sanctions. These sanctions include continuation of probation, 2– or 3–day periods of confinement in jail not totaling more than 6 days per month during any 3 separate months, 120 days' imprisonment followed by resumption of probation, 180 days' imprisonment followed by resumption of probation, etc. See K.S.A.2013 Supp. 22–3 716(b)(3)(A), (c). Some of the intermediate sanctions, such as the 180 days' imprisonment, require that the district court has previously imposed a lesser sanction, such as the 120 days' imprisonment or the 2– or 3–day periods of jail time. See K.S.A.2013 Supp. 22–3716(c)(1)(D). In addition, K.S.A.2013 Supp. 22–3716(c)(9) provides the guidelines by which a court may revoke probation or other nonprison sanction without having previously imposed lesser sanctions.” 2014 WL 3843473, at *2.
Porter argues that the intermediate sanction provisions of K.S.A.2013 Supp. 22–3716(c) apply to him. The State disagrees, contending that the provisions are not applicable in this case because Porter's crimes of conviction were committed prior to the enactment of the 2013 amendments.
This court addressed this precise question in State v. Kurtz, 51 Kan.App.2d 50, 340 P.3d 509 (2014), pet. for review filed March 26, 2015. In Kurtz, this court found that K.S.A.2013 Supp. 22–3716 applies to all probation violations that occur after July 1, 2013, even if the underlying crime of conviction was committed before that date. 51 Kan.App.2d at 56. As evidence of the legislature's intent, the court focused on Senate Substitute for House Bill 2448, which became law on July 1, 2014. In that bill, the legislature added a retroactivity provision to K.S.A.2013 Supp. 22–3716(c) stating that “[t]he violation sanctions provided in this subsection shall apply to any violation of conditions of release or assignment or a nonprison sanction occurring on or after July 1, 2013, regardless of when the offender was sentenced for the original crime or committed the original crime for which sentenced.” L.2014, ch. 102, sec. 8, codified at K.S.A.2014 Supp. 22–3716(c)(12). The Kurtz court concluded:
“The plain language of Senate Substituted for House Bill 2448—which clearly states the legislature's intent—now tells this court that the amendment was meant to control the disposition of probation violations that occurred after July 1, 2013, regardless of when a defendant was sentenced. The legislature has therefore clarified that the date that controls the law that applies to the imposition of sanctions for violating probation is the law that existed when a defendant violated probation, not the law that existed when the defendant committed the underlying crime ... nor the law in effect when the probation hearing occurred.” 51 Kan.App.2d at 56.
See also Lane, 2015 WL 802739, at *3 (adopting the reasoning in Kurtz ).
Although a petition for review is pending in Kurtz, we adopt the reasoning in that case as to the retroactivity provision to K.S.A.2013 Supp. 22–3716(c). Based on the language in Senate Substitute for House Bill 2448, which became law on July 1, 2014, the legislature has made it clear that the amended statute applies to all probation violations that occur after July 1, 2013, even if the underlying crime of conviction was committed before that date. See K.S.A.2014 Supp. 22–3716(c)(12).
Porter's probation violation warrant alleged that on July 5, 2013, Porter admitted to his probation officer that he was associated with persons engaged in illegal activity. This probation violation occurred after July 1, 2013, triggering the application of the graduated sanctions. Likewise the warrant alleged that Porter had failed to begin sex offender treatment and had failed to obtain full-time employment as required by conditions of his probation. These allegations constituted ongoing violations of his probation that continued after July 1, 2013, until the date of Porter's probation revocation hearing on November 22, 2013. These ongoing violations also triggered application of the graduated sanctions set forth in K.S.A.2013 Supp. 22–3716(c).
Here, the district court did not consider and impose the intermediate sanctions set forth in K.S.A.2013 Supp. 22–3716(c)(1)(C) or (D), before revoking Porter's probation and ordering him to serve his underlying sentence. However, the State cites K.S.A.2013 Supp. 22–3716(c)(9), which provides for two exceptions to the rule that intermediate sanctions must be imposed before an offender's probation can be revoked:
“(9) The court may revoke the probation, assignment to a community correctional services program, suspension of sentence of nonprison sanction of an offender pursuant to subsection (c)(1)(E) without having previously imposed a sanction pursuant to subsection (c)(1)(B), (c)(1)(C) or (c)(1)(D) if the court finds and sets forth with particularity the reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the offender will not be served by such sanction.”
The State argues that Porter still is not entitled to a new dispositional hearing because the district court “arguably made the proper findings to allow for revocation.” Before revoking Porter's probation, the district court made the following remarks:
“Some decisions are harder to make than other decisions. Some decisions we don't have control of circumstances quite as much. One of those decisions has to do with the sex offender classes that you were ordered to take. It was a little bit more difficult. However, it wasn't impossible in my opinion to enroll in those classes and take those classes. The financial strain was not out of reach. There was a possibility you could have worked something out with the provider but then you have other areas you decide to have total control over are your decisions.
“You affirmatively did some things that you were prohibited from doing knowing the consequences. You had excellent representation. Your attorney certainly advised you of those consequences. One of the things who you associated with. That had nothing to do with money or not have to do with money. You were associating with improper people.
“The second was the use of marijuana even after the completion or maybe during your work on the drug program.
“And the third was not being forthcoming with your ISO.
“I went back over your file after your first motion. I went back over your file again before today's hearing. I feel the appropriate thing is to revoke and impose the original sentence. That's what we're going to do today. If it would only had been [sic ]—if it only had been I just didn't have the money to start on the offender program I might have looked at it differently. I'm not sure. But the other things compounding it lead me to the conclusion that the appropriate thing to do is revoke and impose.”
Here, the district court did not consider and impose the intermediate sanctions set forth in K.S.A.2013 Supp. 22–3716(c)(1)(C) or (D). Likewise the district court did not explicitly address how members of the public would be jeopardized if Porter remained on probation, nor was there any reference to how Porter's welfare would not be served by imposition of the intermediate sanctions. Without sufficient findings to invoke the exceptions in K.S.A.2013 Supp. 22–3716(c)(9), the district court lacked authority to impose the underlying prison term.
In summary, we must vacate the revocation of Porter's probation and remand to the district court for a new dispositional hearing. At that hearing, in deciding the disposition of Porter's violations occurring on or after July 1, 2013, the district court should either impose intermediate sanctions authorized by K.S.A.2013 Supp. 22–3716(c) or, in the alternative, set forth with particularity its reasons for finding that the safety of the members of the public would be jeopardized or that Porter's welfare would not be served by such intermediate sanctions. Because we are remanding Porter's case for a new dispositional hearing, we need not address Porter's final argument that the district court abused its discretion by revoking his probation and ordering him to serve his underlying prison sentence.
Affirmed in part, reversed in part, and remanded with directions.