Opinion
111,179 111,261.
06-12-2015
STATE of Kansas, Appellee, v. Andraus R. WESLEY, Appellant.
Corrine E. Johnson, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Corrine E. Johnson, of Kansas Appellate Defender Office, for appellant.
Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., STANDRIDGE, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
In this consolidated appeal, Andraus R. Wesley appeals the district court's order revoking his probation and its order that he serve the underlying prison sentences imposed in two Sedgwick County cases: 12–CR–500 and 12–CR–942. Wesley argues that the district court was required to either impose an intermediate sanction under K .S.A.2013 Supp. 22–3716(c)(1)(B)–(D) or make the appropriate findings under K.S.A.2013 Supp. 22–3716(c)(9) prior to revoking his probation and ordering him to serve his underlying prison sentences. Wesley asserts the district court failure in this regard requires us to reverse the court's decision and remand the issue to the district court for further proceedings.
Facts
On February 22, 2012, Wesley was charged in case 12–CR–500 with one count of aggravated burglary, one count of theft, and one count of attempted theft. Later, on April 10, 2012, he was charged in case 12–CR–942 with one count of attempted aggravated robbery and one count of criminal damage to property. Wesley entered into a plea agreement with the State to resolve both cases. He agreed to plead guilty to all counts in 12–CR–500 and to one count of criminal damage to property in 12–CR–942. In return, the State agreed to drop the aggravated robbery count in 12–CR–942 and to recommend a dispositional departure sentence to probation.
Wesley followed the plea agreement and entered guilty pleas to the four counts at issue. The district court accepted his pleas and convicted him of each count. At sentencing, the court imposed controlling prison sentences of 122 months in case 12–CR500 and 15 months in case 12–CR–942. The court ordered the sentences to be served consecutively. The court then granted a dispositional departure and imposed probation for a period of 36 months. Finally, the district court judge warned Wesley that he was going to have zero tolerance for probation violations. He told Wesley, “[I]f you come back on any probation violation, I don't care how minor it might be, you're going to prison.”
At a probation violation hearing on October 31, 2012, Wesley admitted to violating the conditions of his probation by riding in a car with more than one person who was not a family member and by associating with known gang members. The district court revoked his probation and imposed a 60–day jail sanction, after which his probation would be reinstated.
A second probation violation hearing was held on May 16, 2013. Wesley admitted to violating his probation by testing positive for breath alcohol. The district court imposed a second 60–day jail sanction and ordered him to go to a residential program afterwards. The court also extended the term of his probation by 12 months from the original termination date.
On October 1, 2013, a warrant was issued for Wesley's arrest. The warrant alleged Wesley had violated the conditions of his probation again. Specifically, it alleged that on September 25, 2013, a temporary order for protection from stalking was filed against him, that on three occasions in September 2013, he had falsified information on a job seek form, and that on September 24, 2013, he was out of place of assignment. Wesley requested an evidentiary hearing.
The evidentiary probation violation hearing was scheduled for November 6, 2013. Before the hearing began, the State informed the court that it was withdrawing the allegation relating to the protection from stalking order. Wesley then waived the evidentiary hearing and admitted to the remaining allegations in the warrant. In lieu of revoking his probation and ordering him to serve his underlying sentence, Wesley requested the court instead impose a sanction under K.S.A.2013 Supp. 22–3716(c), which had been recently amended by House Bill 2170 to require intermediate sanctions before revocation of probation. See L.2013, ch. 76, sec. 5(c). The State argued that House Bill 2170 was not retroactive.
The district court ultimately decided to revoke Wesley's probation and impose the underlying sentences, although it did order the controlling sentences in both cases to be served concurrently rather than consecutively. Although affirmatively declining to consider House Bill 2170 as part of its decision, the court made no finding as to whether the amended law was retroactive under the facts presented. Wesley timely appeals.
Analysis
K.S.A.2013 Supp. 22–3716(c)
On appeal, Wesley argues that the district court failed to abide by the requirements of K.S.A.2013 Supp. 22–3716(c) when it revoked his probation and ordered him to serve his underlying prison sentence. But before reaching the merits of his argument, this court first must determine whether K.S.A.2013 Supp. 22–3716(c) applies to Wesley's probation violations. Such a determination requires interpretation of a statute, which is a question of law over which this court exercises unlimited review. State v. Kendall, 300 Kan. 515, 520, 331 P.3d 763 (2014).
The House Bill 2170 amendment to K.S.A.2013 Supp. 22–3716(c) became effective on July 1, 2013. This amendment enacted a series of intermediate sanctions that district courts could impose after finding a defendant violated a condition of his or her probation. The new intermediate sanctions generally require district courts to impose short jail sentences on defendants who violate their probations before ordering them to serve their full underlying sentences. K.S.A.2013 Supp. 22–3716(c)(1)(A)–(E) outlines the sanctions that a district court may impose if the original crime of conviction was a felony. It states in relevant part:
“(c)(1) Except as otherwise provided, the following violation sanctions may be imposed:
(A) Continuation or modification of the release conditions of the probation, assignment to a community correctional services program, suspension of sentence or nonprison sanction;
(B) an intermediate sanction of confinement in jail for a total of not more than six days per month in any three separate months during the period of release supervision. The six days per month confinement may only be imposed as two-day or three-day consecutive periods, not to exceed 18 days of total confinement;
(C) if the violator already had at least one intermediate sanction imposed pursuant to subsection (c)(1)(B) related to the felony crime for which the original supervision was imposed, remanding the defendant to the custody of the secretary of corrections for a period of 120 days, subject to a reduction of up to 60 days in the discretion of the secretary. This sanction shall not be imposed more than once during the term of supervision;
(D) if the violator already had a sanction imposed pursuant to subsection (c)(1)(B) or (c)(1)(C) related to the felony crime for which the original supervision was imposed, remanding the defendant to the custody of the secretary of corrections for a period of 180 days, subject to a reduction of up to 90 days in the discretion of the secretary. This sanction shall not be imposed more than once during the term of supervision; or
(E) if the violator already had a sanction imposed pursuant to subsection (c)(1)(C) or (c)(1)(D) related to the felony crime for which the original supervision was imposed, revocation of the probation, assignment to a community corrections services program, suspension of sentence or nonprison sanction and requiring such violator to serve the sentence imposed, or any lesser sentence and, if imposition of sentence was suspended, imposition of any sentence which might originally have been imposed.”
K.S.A.2013 Supp. 22–3716(c)(1)(A)–(E).
Although the intermediate sanctions set forth above are generally mandatory, the statute also provides several avenues by which a district court can choose to revoke a defendant's probation immediately and impose the underlying prison sentence without first imposing an intermediate sanction. For instance, if a defendant on probation commits a new felony or misdemeanor or absconds from supervision, a district court may bypass the intermediate sanctions and send the defendant to prison. K.S.A.2013 Supp. 22–3716(c)(8). More relevant to this case is K.S.A.2013 Supp. 22–3716(c)(9), which provides that a district court may bypass the intermediate sanctions and impose the underlying prison sentence after a defendant violates his or her probation “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.”
Although convicted of all counts prior to July 1, 2013, Wesley argues that the relevant provisions of K.S.A.2013 Supp. 22–3716 are retroactive and must be applied to his most recent probation violations. The State disagrees. A statute operates prospectively unless its language clearly indicates a legislative intent to apply it retrospectively or the statutory change is procedural or remedial in nature and does not prejudicially affect the parties' substantive rights. State v. Jaben, 294 Kan. 607, 612–13, 277 P.3d 417 (2012).
K.S.A.2013 Supp. 22–3716 is silent as to whether it applies retrospectively. But as Wesley correctly points out in his brief, the legislature again amended K.S.A.2013 Supp. 22–3716 during its 2014 session. See L.2014, ch. 201, sec. 8(c)(12). It clarified precisely when the statute should apply. K.S.A.2014 Supp. 22–3716(c)(12) states: “The violation sanctions provided in this subsection shall apply to any violation of conditions of release or assignment or a nonprison sanction occurring on and after July 1, 2013, regardless of when the offender was sentenced for the original crime or committed the original crime for which sentenced.” This court recently addressed the 2014 amendment, finding that “[o]ur legislature has now made its intent clear-the date of the defendant's probation violation controls whether the intermediate sanction provisions of K.S.A.2013 Supp. 22–3716(c) apply.” State v. McGill, 51 Kan.App.2d 92, 95, 340 P.3d 515 (2015), petition for rev. filed February 9, 2015.
Both of Wesley's probation violations leading to his imprisonment occurred after July 1, 2013. According to the current language of the statute and this court's holding in McGill, we necessarily conclude the district court erred in refusing to apply K.S.A.2013 Supp. 22–3716(c) after finding that Wesley violated his probation.
Sufficient findings
Given that K.S.A.2013 Supp. 22–3716 applies here, we must determine whether the district court made the findings required by K .S.A.2013 Supp. 22–3716(c)(9) before ordering him to serve the underlying sentence. Such a determination requires this court to interpret K.S.A.2013 Supp. 22–3716(c)(9). Again, statutory interpretation is a question of law over which this court exercises unlimited review. Kendall, 300 Kan. at 520.
As mentioned above, K.S.A.2013 Supp. 22–3716(c)(9) provides an avenue by which a district court can bypass the intermediate sanctions found in K.S.A.2013 Supp. 22–3716(c)(1)(B)–(D) and impose a defendant's underlying prison sentence upon finding the defendant has violated his or her probation. It states:
“The court may revoke the probation, assignment to a community correctional services program, suspension of sentence or 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.”
K.S.A.2013 Supp. 22–3716(c)(9).
After the district court found Wesley violated his probation and subsequently imposed the underlying sentence, it expressly declined to consider whether K.S.A.2013 Supp. 22–3 716(c) was applicable. The district court judge stated, “I'm not taking any consideration at all of House Bill 2170.” The prosecutor then asked whether the district court was willing to make public safety findings in case House Bill 2170 was found to apply. The district court judge then said, “Well, I would just simply find that Mr. Wesley is criminal history A. The crimes of conviction were aggravated burglaries, criminal damage to property. They were person crimes, and the crimes themselves demonstrate some disregard for public safety.”
Wesley argues that the district court failed to appropriately find with particularity that public safety would be jeopardized or that his welfare would not be served by an intermediate sanction and therefore improperly revoked his probation and ordered him to serve his underlying sentence. “When something is to be set forth with particularity, it must be distinct rather than general, with exactitude of detail, especially in description or stated with attention to or concern with details.” State v. Huskey, 17 Kan.App.2d 237, Syl. ¶ 2, 834 P.2d 1371 (1992). Further, implicit findings are insufficient when particularized findings are required by statute. State v. Miller, 32 Kan.App.2d 1099, 1102–03, 95 P .3d 127 (2004).
We conclude the district court's findings failed to conform to the requirements of K.S.A.2013 Supp. 22–3716(c)(9). Simply stated, the court failed to find and explain why public safety would be jeopardized or how Wesley's welfare would not be served by imposing an intermediate sanction under K.S.A.2013 Supp. 22–3716(c)(1). The district court did not make any findings whatsoever relating to Wesley's welfare. And when asked to make public safety findings, it merely noted Wesley's criminal history score, recited some of Wesley's convictions, and stated that the crimes themselves showed some disregard for public safety. At most, these findings indicate the Wesley was a threat to public safety at some point in the past. The district court failed to identify any connection between these findings and its decision to revoke Wesley's probation. As such, any relationship between the district court's findings and Wesley's probation revocation would need to be implied. Therefore, the district court's findings were not set forth with particularity as required by K.S.A.2013 Supp. 22–3716(c)(9).
The only other reason provided by the district court for revoking Wesley's probation was that it had warned Wesley at sentencing that it was going to have zero tolerance for any probation violations. The judge stated, “[T]his is your third probation violation after you were told back in June of 2012 that if you committed any probation violations you were going to go to prison.” Thereafter, it ordered Wesley to serve his underlying prison sentences.
In Miller, a district court noted at sentencing that “ ‘[Mr. Miller] received a significant break from the Court at time of sentencing by being granted not only a dispositional departure, but being assigned to court services. And Mr. Miller was unable to make it from the courthouse to court services, a half block [before violating probation].’ “ 32 Kan.App.2d at 1101. A panel of this court concluded that these statements did not constitute particularized findings as required by K.S.A.2003 Supp. 22–3716(b) because they were generalized and because the district court did not explicitly link them to public safety or Miller's welfare. 32 Kan.App.2d at 1101–03. The same reasoning applies here. Wesley was warned several times that a probation violation would result in prison time. But the district court did not explain with particularity how Wesley's failure to heed these warnings was related to public safety or Wesley's own welfare. Thus, the court did not comply with the requirements of K.S.A.2013 Supp. 22–3716(c)(9) before revoking Wesley's probation and imposing his underlying prison sentence. Accordingly, we reverse the court's decision to revoke probation and impose the underlying sentence. We remand for the district court to either impose an intermediate sanction under K.S.A.2013 Supp. 22–3716(c)(1)(B)–(D) or make the appropriate findings with particularity under K.S.A.2013 Supp. 22–3716(c)(9) prior to revoking his probation and ordering him to serve his underlying prison sentences.
Reversed and remanded with directions.