State v. Anderson ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,908
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JAMES E. ANDERSON,
Appellant.
MEMORANDUM OPINION
Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed September 25,
2020. Reversed and remanded with directions.
James M. Latta, of Kansas Appellate Defender Office, for appellant.
Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before MALONE, P.J., BUSER and POWELL, JJ.
PER CURIAM: James E. Anderson appeals the district court's order revoking his
probation and ordering him to serve his original 30-month prison sentence. Anderson
claims the district court erred by failing to first impose an intermediate prison sanction as
required by the law in effect when he committed his crimes of conviction. He also claims
for the first time on appeal that his original sentence is illegal because there was not
enough evidence for the district court to classify his prior Kansas felony conviction as a
person felony. We agree with Anderson that the district court erred by revoking his
probation without first imposing an intermediate prison sanction. Because this finding
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requires the case to be remanded for further proceedings, we decline to address the
legality of Anderson's sentence for the first time on appeal, noting that the parties may
address the issue in the district court during the proceedings on remand.
Factual and procedural background
On February 22, 2019, under a plea agreement, Anderson pled guilty to possession
of methamphetamine, interference with a law enforcement officer, criminal possession of
a firearm, and possession of marijuana. All the crimes occurred on April 15, 2017. The
district court accepted the plea and ordered a presentence investigation report. Ultimately,
the district court found Anderson to be in criminal history category C based, in part, on
his 2009 Kansas conviction of fleeing and eluding law enforcement which was scored as
a person felony. On May 31, 2019, the district court sentenced Anderson to a controlling
term of 30 months' imprisonment but made border box findings and granted probation for
18 months to be supervised by community corrections.
On June 10, 2019, Anderson's intensive supervision office (ISO) alleged that
Anderson had violated the terms of his probation by failing a urinalysis test and
admittedly using methamphetamine twice in early June. Anderson waived his right to a
probation violation hearing and accepted a three-day jail sanction. On August 28, 2019,
Anderson's ISO alleged that Anderson had again violated the terms of his probation, this
time by failing to report to outpatient treatment as directed, testing positive for
methamphetamine, and failing to report to his ISO as directed. Based on these
allegations, the State moved to revoke Anderson's probation.
The district court held a probation violation hearing on September 3, 2019.
Anderson stipulated to violating the terms of his probation by failing to report to
outpatient treatment and by testing positive for methamphetamine. The State presented
evidence that Anderson also failed to report to his ISO and Anderson presented no
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contrary evidence. The State asked the district court to find that Anderson had violated
his probation and to order him to serve his original prison sentence. Anderson asked the
district court to order an additional intermediate sanction and return him to probation for
further drug treatment. Agreeing with the State, the district court revoked Anderson's
probation and ordered him to serve the original sentence. Anderson timely appealed.
On appeal, Anderson claims the district court violated his constitutional rights
under the Ex Post Facto Clause and the Due Process Clause of the United States
Constitution by failing to impose an intermediate prison sanction before revoking his
probation as required by the law in effect when he committed his crimes of conviction.
Anderson also claims the district court erred when it unreasonably revoked his probation
because of "mere technical, nonviolent violations." Finally, Anderson claims for the first
time on appeal that his sentence is illegal because there was insufficient evidence before
the district court to support the classification of his 2009 Kansas felony conviction of
fleeing and eluding as a person felony for criminal history purposes.
Anderson's probation revocation
The procedure for revoking an offender's probation is governed by K.S.A. 2019
Supp. 22-3716. That statute requires the district court to impose intermediate sanctions
before it can revoke an offender's probation, but the number and type of intermediate
sanctions has recently changed. See L. 2019, ch. 59, § 10. Before July 1, 2019, the district
court had to impose either a 2-day or 3-day jail sanction followed by a 120-day or 180-
day prison sanction before revoking a defendant's probation. See K.S.A. 2018 Supp. 22-
3716(c)(1)(A)-(D). But effective July 1, 2019, the Legislature removed the 120-day and
180-day prison sanction from the intermediate sanctioning scheme. See K.S.A. 2019
Supp. 22-3716(c). Thus, under the 2019 amendment, the district court may now revoke
an offender's probation after the offender has received at least one two-day or three-day
jail sanction. See K.S.A. 2019 Supp. 22-3716(c)(1)(C).
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This court reviews the propriety of the sanction for a probation violation imposed
by the district court for an abuse of discretion. State v. Coleman, 311 Kan. 332, 334, 460
P.3d 828 (2020). Judicial discretion is abused if the judicial decision (1) is arbitrary,
fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of
fact. State v. Gonzalez-Sandoval, 309 Kan. 113, 126-27, 431 P.3d 850 (2018). Moreover,
to the extent this appeal involves statutory or constitutional interpretation, we have
unlimited review. Coleman, 311 Kan. at 334-35,
Anderson first argues that because the law in effect when he committed his crimes
of conviction entitled him to an intermediate prison sanction before revocation, the
district court's order revoking his probation violated the Ex Post Facto Clause found in
Article 1, § 10 of the United States Constitution. Second, Anderson argues that revoking
his probation without first ordering a prison sanction violated his rights under the Due
Process Clause of the Fourteenth Amendment to the United States Constitution because
he was not on notice when he pled guilty to his crimes of conviction that his probation
could be revoked without the district court first imposing a prison sanction.
Anderson did not raise his constitutional claims in district court, but he asserts that
we can consider the claims for the first time on appeal because they involve questions of
law arising on proved or admitted facts and the claims are finally determinative of the
case on appeal. See State v. Hirsh, 310 Kan. 321, 338, 446 P.3d 472 (2019). The State
does not argue that there is a preservation issue.
In response to Anderson's Ex Post Facto claim, the State asserts that "[t]his issue
was recently settled" by the Kansas Supreme Court in Coleman, in which the court held
that a 2017 amendment to K.S.A. 22-3716 creating a dispositional departure exception to
the intermediate sanctioning scheme applies only to probationers whose offenses or
crimes of conviction occurred on or after July 1, 2017. See 311 Kan. at 337; see also
State v. Dominguez, 58 Kan. App. 2d ___, Syl. ¶ 3, 2020 WL 5079777 (Kan. App. 2020)
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("The 2019 amendment to the intermediate sanctioning scheme at K.S.A. 22-3716 does
not apply retroactively to probation violators whose crimes were committed before the
effective date of the amendment."). Accordingly, the State concedes that the version of
K.S.A. 22-3716 in effect in April 2017—when Anderson committed his current crimes of
conviction—controls the required sanctions for Anderson's 2019 probation violations.
Based on this concession, we need not address Anderson's constitutional claims in any
more detail. See State ex rel. Schmidt v. City of Wichita, 303 Kan. 650, 658, 367 P.3d 282(2016) (finding that an appellate court need not reach constitutional challenges where
there is a valid alternative ground for relief).
As discussed earlier, K.S.A. 2016 Supp. 22-3716(c)(1)(D)-(E), the version of the
statute in effect when Anderson committed his crimes, requires a district court to impose
either a 120-day or 180-day intermediate prison sanction before the court can revoke a
defendant's probation and order the defendant to serve the original sentence. The district
court here did not do so. But as our Supreme Court has recognized, a district court may
"skip[] the prison-sanction step of the statutorily required intermediate sanctions" if it
finds "that a bypass exception existed." State v. Dooley, 308 Kan. 641, 650, 423 P.3d 469(2018.) The State argues that the district court here applied such a bypass exception.
K.S.A. 2016 Supp. 22-3716(c)(9) allows a district court to revoke an offender's
probation without having previously imposed an intermediate sanction "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 contends that the district court revoked Anderson's probation under
this subsection, pointing to the district court's comments at sentencing that it was on the
fence about whether to place Anderson on probation and the court's comments at the
probation violation hearing that Anderson had been convicted of crimes involving
firearms and that he had an extensive history of drug abuse.
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But as Anderson asserts in his reply brief, the record on appeal does not support
the State's contention that the district court relied on the public safety/offender welfare
exception to bypass intermediate sanctions. The district court neither invoked K.S.A.
2016 Supp. 22-3716(c)(9) at the probation violation hearing nor in the journal entry of
revocation. The district court also failed to make particularized findings required to
utilize that subsection to revoke Anderson's probation. As our Supreme Court has stated,
if a district court wants to invoke the public safety/offender welfare exception to bypass
intermediate sanctions, it must make findings that are "'"distinct, rather than general, with
exactitude of detail, especially in description or stated with attention to or concern with
details."'" See Dooley, 308 Kan. at 652. Because the statute requires particularized
findings, "'an implicit determination is not enough.'" 308 Kan. at 652. The district court
must explain how the safety of the members of the public will be jeopardized if the
offender remains on probation or explain how the offender's welfare will not be served by
imposition of the intermediate sanction. State v. McFeeters, 52 Kan. App. 2d 45, 49, 362
P.3d 603 (2015). Here, the district court did not make the particularized findings required
to bypass intermediate sanctions under K.S.A. 2016 Supp. 22-3716(c)(9), so the State
cannot rely on that provision to support the revocation of Anderson's probation.
In sum, as the State concedes, the district court needed to apply the intermediate
sanctioning scheme in effect in April 2017 when Anderson committed his crimes of
conviction. See K.S.A. 2016 Supp. 22-3716(c). Thus, the district court erred by revoking
Anderson's probation without first imposing an intermediate prison sanction or properly
bypassing intermediate sanctions, and we must remand this case for a new dispositional
hearing. On remand, the district court must impose either a 120-day or 180-day prison
sanction before revoking Anderson's probation, unless the court finds a valid statutory
ground and makes the appropriate findings to bypass further intermediate sanctions. We
note that because more than 180 days have passed since the revocation hearing, Anderson
has already served more than the longest intermediate prison sanction that the district
court could impose under K.S.A. 2016 Supp. 2203716(c). Finally, this disposition of the
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appeal renders moot Anderson's other argument that the district court erred by revoking
his probation for "mere technical, nonviolent violations."
Anderson's illegal sentence claim
In his final issue, Anderson argues that his sentence is illegal because there was
insufficient evidence before the district court to support the classification of his 2009
Kansas felony conviction of fleeing and eluding as a person felony for criminal history
purposes. The State disagrees, arguing that the district court took judicial notice of the
journal entry in the 2009 Kansas case that identified the crime as a person felony.
Although the State represented in its appellate brief that it would move to include a copy
of the relevant journal entry in the record on appeal, the record on appeal contains no
such journal entry. Nor does the sentencing hearing transcript reflect that the district court
took judicial notice of the journal entry reflecting the 2009 felony.
"Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a question
of law over which we have unlimited review." State v. Becker, 311 Kan. 176, 191, 459
P.3d 173 (2020). It is well established that a party may challenge a sentence as illegal for
the first time on appeal. See 311 Kan. at 191. But under the circumstances here and the
status of the appellate record, we find it wiser to allow the parties to fully develop and
resolve the issue in the district court during the remand proceedings.
Reversed and remanded with directions.
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