State v. Jones ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,589
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JULIE MARIE JONES,
Appellant.
MEMORANDUM OPINION
Appeal from Rice District Court; CAREY L. HIPP, judge. Opinion filed May 7, 2021. Reversed
and remanded with directions.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Remington S. Dalke, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., ATCHESON, J., and BURGESS, S.J.
PER CURIAM: Julie Jones appeals from the revocation of her probation and the
imposition of her underlying prison sentence. Finding that the district court did not enter
a sanction for the probation violation or otherwise make sufficient findings authorizing
the imposition of the prison sentence without first ordering a sanction, we reverse and
remand.
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FACTUAL AND PROCEDURAL HISTORY
On December 5, 2018, while on supervised probation for a prior conviction of
possession of methamphetamine, Jones fled from the courthouse. As a result, on
December 26, 2018, the State charged Jones with one count of aggravated escape from
custody in violation of K.S.A. 2018 Supp. 21-5911(b)(1)(A), a severity level 8 nonperson
felony. Jones entered a guilty plea to this charge, and on May 15, 2019, the district court
sentenced Jones to 18 months of probation with an underlying 13-month prison term.
On September 25, 2019, Jones' intensive supervision officer (ISO) filed a violation
report and an attached affidavit with the district court alleging that Jones violated her
probation. The ISO alleged that Jones violated her probation when she admitted verbally
and in writing to ingesting methamphetamine, failing to engage in mental health services
as directed, failing to report for a drug and alcohol evaluation, and failing to report for a
scheduled office visit. The ISO also alleged that Jones had failed to report since July 5,
2019, and she was believed to be evading supervision. The district court issued an arrest
warrant based on the alleged probation violations, and Jones was arrested, but was
released on bond.
The district court directed Jones to appear for a probation violation hearing. Jones
did not appear at the hearing, and she was subsequently arrested on a bench warrant for
failure to appear.
On January 15, 2020, the district court held another probation violation hearing for
the same alleged violations. The hearing addressed the present case as well as a case from
2017 for which Jones was also serving probation. At the hearing, Jones admitted to the
alleged probation violations and waived her right to an evidentiary hearing. The district
court then deemed the allegations in the affidavit as true, accurate, and correct, and
determined that Jones violated her probation.
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The State then asked the court to consider Jones' performance on probation in both
of her cases, find that she was not amenable to probation, and revoke her probation. The
State explained that this was the third probation violation hearing for Jones' 2017 case.
However, this was the first probation violation hearing for her 2018 case. The State first
recounted Jones' probation violation history for the 2017 case and explained that she
previously served a 3-day quick dip after she failed two outpatient programs, a 60-day
sanction after she fled the courthouse, and a 120-day sanction after she admitted to using
methamphetamine and failed to report to an office visit. The State then recited the current
probation violation allegations and explained that after Jones was arrested on those
violations, she bonded out and absconded. After an arrest warrant was issued for Jones, it
was discovered that she was involved in a hit and run in another county. The other county
eventually arrested Jones, and she was brought back to Rice County.
The State asked the court to revoke probation on the 2017 case because Jones had
exhausted the graduated sanctions. On the 2018 case, the State asked the court to revoke
probation
"for the same reason, but also based on the fact that in that case she was presumptive
prison when she was sentenced, and she has—even with that threat hanging over her
head, knowing that this is a fourth [probation violation], knowing that she's got both of
these cases, she continues to fail to report. She continues to abscond. She continues to use
methamphetamine. I don't see in her history that she's taken any steps to better herself."
In response, Jones' counsel asked the district court to impose a 120-day sanction in
the present case rather than revoke probation.
After hearing the statements from the parties, the district court revoked probation
on both cases, reasoning:
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"My challenge always is that I honestly am more than willing to give somebody a chance
at probation especially when we know there's a drug problem is the underlying problem,
and I want to see people get treatment, but I will also say I think the only way the
treatment is going to work is if somebody's willing to go to treatment and open to it and
trying to successfully complete the options for change that have been given to that
person. And to be honest with you, what I see is most recently mental health outpatient
treatment, unsuccessful, fail to engage; substance abuse treatment at Heartland RADAC,
unsuccessful, failed to engage; and Oxford House, unsuccessful, failed to enter in a
program. So those are the last three—you know, three things that I'm seeing on the case
history report, and, Ms. Jones, that's telling me that you're not ready to make that change.
I am going to revoke your probation on both cases. I am going to impose your original
sentence on both cases. . . . With respect to the [2017 case], I'm determining that you're
not amenable to probation. I think that also carries over to the [2018] case, and even
though this is your—technically, your first probation violation on that case, because you
were presumptive prison to begin with, obviously, that right there was your chance to
make a change on that case by being granted probation, and honestly, it just hasn't
worked, and I don't believe you're amenable to probation."
On the journal entry of the probation violation hearing for her 2018 case, the
district court specified "Condition Violation" and "Not Amenable to Treatment" as the
reasons for the violation hearing. In Section IV, the court checked the box that stated:
"Court revoked because of public safety or offender welfare finding. (K.S.A. 22-
3716(c)(9))—state reasons in comment box." The district court made no comment in the
journal entry as to why that provision applied. The court did not check the box that
stated: "Court revoked because defendant absconded or committed new crime. (K.S.A.
22-3716(c)(8))—state reasons in box #3." However, in box number 3, the district court
noted: "Defendant admitted to ingesting methamphetamine July 19, 2019. Defendant
failed to engage in mental health services as directed. Defendant failed to report for drug
and alcohol evaluation on July 29, 2019. Defendant failed to report since July 25, 2019."
There are no comments concerning Jones absconding from probation.
4
Jones filed a timely notice of appeal from the revocation of probation and the
imposition of the underlying prison sentence in her 2018 case.
ANALYSIS
The district court abused its discretion when it revoked Jones' Probation.
Jones argues that the district court abused its discretion in revoking her probation
and imposing her underlying sentence. Specifically, Jones contends that the district court
revoked her probation because it determined that she was not amenable to probation. She
argues that a finding of nonamenability to probation is not a valid statutory basis for
revocation under K.S.A. 2018 Supp. 22-3716(c) without first imposing an intermediate
sanction. The State responds by arguing that the district court acted within its discretion
when it revoked Jones' probation because the statutory exception under K.S.A. 2018
Supp. 22-3716(c)(8)(B) allows a district court to revoke probation if the court finds that
the defendant absconded from supervision while on probation.
Jones raised this issue in the district court when her counsel, at the probation
revocation hearing, asked the district court to impose a 120-day sanction rather than
revoke probation. The court ruled on this issue and revoked Jones' probation.
Standard of Review
An appellate court reviews the district court's revocation of an offender's probation
for an abuse of discretion. State v. Coleman, 311 Kan. 332, 334, 460 P.3d 828 (2020). 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). Jones, as the party asserting the
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district court abused its discretion, bears the burden of showing such abuse of discretion.
State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018).
Which Version of the Statute Applies?
The district court must apply the intermediate sanctioning scheme of the probation
violation statute that was in effect when the defendant committed the crime. See
Coleman, 311 Kan. at 337; State v. Dominguez, 58 Kan. App. 2d 630, 637, 473 P.3d 932(2020) (providing that district court must apply intermediate sanctioning scheme in effect
when defendant committed crime). Jones committed the crime on December 5, 2018.
Because the 2019 amendment did not become effective until July 1, 2019, the 2018
version of K.S.A. 22-3716 applies.
Under K.S.A. 2018 Supp. 22-3716, before a district court can revoke a defendant's
probation, intermediate sanctions must be imposed. The first sanction required to be
imposed is a two-day or a three-day jail sanction. K.S.A. 2018 Supp. 22-3716(b)(4)(A)-
(B), (c)(1)(B). The second sanction required to be imposed is either a 120-day or a 180-
day prison sanction. K.S.A. 2018 Supp. 22-3716(c)(1)(C)-(D). Jones had not served any
intermediate sanctions on this case at the time of the probation violation hearing.
K.S.A. 2018 Supp. 22-3716(c)(8)-(9) also sets forth certain circumstances in
which a district court may revoke a defendant's probation without first imposing these
intermediate sanctions, including: (1) if the defendant commits a new felony or
misdemeanor while on probation; (2) if the defendant absconds from supervision while
on probation; or (3) if "[t]he 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." Because Jones had not served any
intermediate sanctions, the district court had to find that one of these exceptions existed
in order to revoke probation.
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Nonamenability to Probation
Jones' primary argument is that the district court abused its discretion when it
revoked her probation based on its determination that Jones was not amenable to
probation. Jones argues that when the Legislature enacted the new probation violation
graduated sanctions scheme, it limited a district court's discretion to revoke probation for
only those reasons outlined in the statute. Jones contends that nonamenability to
probation was not a basis of revocation under the graduated sanctions scheme. It is Jones'
argument that it was a mistake of law for the district court to revoke her probation on the
basis of nonamenability to probation.
Historically, the district court had discretion to revoke probation once there was
evidence of a violation of the conditions on which probation was granted. State v.
Dooley, 308 Kan. 641, 647, 423 P.3d 469 (2018). However, the Legislature altered the
district court's discretion to revoke probation with its 2013 amendments to K.S.A. 22-
3716. L. 2013, ch.76, § 5. As discussed above, the district court now may revoke
probation only once the intermediate sanctions have been imposed or one of the statutory
exceptions has been invoked. District courts no longer have discretion to revoke
probation due to the defendant's nonamenability to probation on an initial revocation.
State v. McFeeters, 52 Kan. App. 2d 45, 49, 362 P.3d 603 (2015) ("The remarks made by
the district court at [the defendant's] revocation simply repeat the type of reasoning
historically relied upon by sentencing courts in discussing amenability to probation when
exercising their discretion to revoke the privilege of probation. The law has changed.").
Here, the district court judge reasoned that nonamenability was a basis for the revocation
of probation and imposition of the original sentence, stating: "I am going to impose your
original sentence on both cases. . . . With respect to the [2017 case], I'm determining that
you're not amenable to probation. I think that also carries over to the [2018] case." The
district court was required to enunciate one of the statutory exceptions in order to bypass
the imposition of intermediate sanctions. A finding of nonamenability is insufficient.
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Absconds from Supervision Exception
The State argues that the district court invoked K.S.A. 2018 Supp. 22-
3716(c)(8)(B) by finding that Jones absconded from probation, which allowed the district
court to revoke Jones' probation without first imposing the intermediate sanctions.
For a district court to invoke the "absconds from supervision" exception, the
district court must make the specific finding that the defendant absconded from
supervision while on probation. See Dooley, 308 Kan. at 654, 658. In Dooley, the hearing
transcript revealed that the defendant admitted to the State's allegation that he "'[had]
failed to report his whereabouts and [had] failed to report to community corrections
having apparently absconded,'" but when the district court made the decision to revoke
the defendant's probation and impose his underlying sentence, the district court did not
mention the defendant's admission to the court that he "'apparently absconded.'" 308 Kan.
at 643, 653. In the journal entry that followed, the district court did not check the box
next to the phrase "'Court revoked pursuant to K.S.A. 2013 Supp. 22-3716(c)(8)'"—the
"absconds from supervision" exception at the time. 308 Kan. at 654.. However, in the
section of the journal entry where the district court could describe the violations, the
district court included "defendant absconded" at the end of a list that included five
admissions of drug use and two failures to report. 308 Kan. at 654. The court explained
that it was unable to confirm from the hearing transcript and the journal entry whether the
district court invoked the "absconds from supervision" exception and whether it made the
finding that the defendant absconded from supervision—the condition precedent required
to invoke that exception. As a result, the court reversed and remanded and directed the
district court to either impose an intermediate sanction or to make the finding that it was
invoking the "absconds from supervision" exception based on a finding, supported by
substantial competent evidence, that the defendant absconded from supervision. 308 Kan.
at 658.
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In this case, the allegations of the probation violations stated that the probation
officer believed that Jones was "evading supervision." There is no specific allegation that
Jones had absconded. Evading supervision could be considered quite differently than
absconding. Other than failing to report, there are no other allegations that support an
allegation of absconding.
The district court below did not make a specific finding or comment that Jones
absconded from supervision, which if it had been made might have satisfied the
"absconds from supervision" exception under K.S.A. 2018 Supp. 22-3716(c)(8)(B). In
Dooley, the court held that the district court did not make the specific finding that the
defendant absconded from supervision when the district court (1) did not mention the
defendant's admission that he "apparently absconded" when making the decision to
revoke probation; and (2) did not check the box on the journal entry indicating that it was
revoking under the "absconds from supervision" exception. 308 Kan. at 654. In this case,
the district court (1) did not mention the defendant's admissions to failing to report for a
scheduled office visit, failing to report to her ISO since July 5, 2019, or to the belief that
she was evading supervision when making the decision to revoke probation; and (2) did
not check the box on the journal entry indicating that it was revoking because the
defendant absconded. Even though Jones admitted to failing to report, and the journal
entry listed the failures to report, these facts are insufficient to establish that the district
court made the specific finding that Jones absconded from supervision.
The State argues that the failure to check the box on the journal entry indicating
that it was revoking because the defendant absconded was a typographical error because
when that box is checked, the district court is directed to include reasons in box number
3, which is where the district court stated that the defendant was failing to report. Failing
to report and absconding are not necessarily the same thing. The district court failed to
make a specific finding that the defendant absconded from supervision.
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Public Safety/Offender Welfare Exception
While the State does not argue that the district court invoked the public
safety/offender welfare exception, it will be addressed because in the journal entry, the
court checked the box that stated: "Court revoked because of public safety or offender
welfare finding. (K.S.A. 22-3716(c)(9))—state reasons in comment box." The public
safety/offender welfare exception requires that the court find and set 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 if the court imposes an
intermediate sanction. K.S.A. 2018 Supp. 22-3716(c)(9)(A). Here, the district court did
not make this finding at the probation revocation hearing, and it left the corresponding
"comment box" blank. The district court did not set forth any reasons for finding that the
safety of members of the public would be jeopardized or that the welfare of the offender
would not be served by imposing an intermediate sanction. Consequently, the district
court did not invoke K.S.A. 2018 Supp. 22-3716(c)(9)(A).
Dispositional Departure Exception
Lastly, Jones asserts that the district court erred in revoking her probation when it
incorrectly believed that probation in this case was imposed as a result of a dispositional
departure. Under K.S.A. 2018 Supp. 22-3716(c)(9)(B), the district court may revoke
probation without first imposing the intermediate sanctions if the probation was
originally granted as the result of a dispositional departure. Although Jones does not cite
to the location in the record where she feels the district court incorrectly believed that
probation here was imposed as a result of a dispositional departure, Jones likely is
referring to the fact that the district court stated that this was "presumptive prison" during
the probation revocation hearing.
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During the probation revocation hearing, the district court judge stated, "I think
that also carries over to the [2018] case, and even though this is your—technically, your
first probation violation on that case, because you were presumptive prison to begin with,
obviously that right there was your chance to make a change on that case by being
granted probation." (Emphasis added.) According to the sentencing journal entry,
however, the presumption was for probation, not prison.
Because Jones committed the current crime while on supervision for a prior
felony, K.S.A. 2018 Supp. 21-6604(f)(1), could have been applied, which provided that
the district court may impose prison even if the presumption was nonprison. The crime in
this case was presumptive probation, and the probation revocation hearing transcript
shows that K.S.A. 2018 Supp. 21-6604(f)(1) was not used to impose prison. Thus, there
was not a dispositional departure here, and the district court could not rely on K.S.A.
2018 Supp. 22-3716(c)(9)(B) to bypass the intermediate sanction requirement.
The district court abused its discretion in revoking Jones' probation and imposing
the underlying prison sentence. The decision of the district court is reversed, and the case
remanded to the district court with directions to either impose an intermediate sanction or
to make a satisfactory determination that statutory grounds exist that would permit the
bypass of the imposition of an intermediate sanction.
Reversed and remanded with directions.
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