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State v. Duran

Court of Appeals of Kansas

June 21, 2019

State of Kansas, Appellee,
v.
Guadalupe J. Duran, Appellant.

         SYLLABUS

         1. To bypass intermediate sanctions for violations of probation under K.S.A. 2018 Supp. 22-3716(c)(9)(A), a district court must 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 by such sanction.

         2. The district court's findings under K.S.A. 2018 Supp. 22-3716(c)(9)(A) that the safety of members of the public will be jeopardized or that the welfare of the offender will not be served by imposing intermediate sanctions for a probation violation are not specific enough to bypass intermediate sanctions if an appellate court must infer from the judge's findings the particularized reasons why public safety would be jeopardized or the offender's welfare would not be served.

         3. Broad generalizations about public safety and offender welfare that could easily apply to all similar cases are not sufficiently particularized to meet the requirements of K.S.A. 2018 Supp. 22-3716(c)(9)(A).

          4. Regardless of whether a judge has threatened previously to revoke a defendant's probation if there are any violations of probation, the Legislature has clearly chosen to limit the court's ability to follow through on such a threat by legislating a scheme of intermediate sanctions.

          Appeal from Sedgwick District Court; Terry L. Pullman, judge.

          Jennifer C. Roth, 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 Arnold-Burger, C.J., Hill, J., and Stutzman, S.J.

          Arnold-Burger, C.J.

         If the district court finds "with particularity" that intermediate sanctions would jeopardize public safety or that the welfare of the offender will not be served by the imposition of intermediate sanctions, the district court may order the offender who has violated probation to serve his or her underlying sentence. K.S.A. 2018 Supp. 22-3716. But the court's order must state the reasons for its findings with particularity. The district court's findings are not specific enough to bypass intermediate sanctions if an appellate court must infer from the judge's findings the particularized reasons the public safety would be jeopardized or the offender's welfare would not be served. See State v. Clapp, 308 Kan. 976, Syl. ¶ 4, 425 P.3d 605 (2018).

         Guadalupe J. Duran was sentenced in two cases on two occasions. The court offered Duran, and he accepted, probation on each case with a lengthy underlying sentence. After Duran violated his probation, the district court bypassed graduated sanctions and ordered Duran to serve his underlying sentences because the court believed continued probation would jeopardize public safety and would not serve Duran's welfare. Duran appeals, arguing the district court's findings lacked the required specificity. Because the district court abused its discretion by revoking Duran's probation without setting forth with particularity the reasons for finding that the safety of members of the public would be jeopardized or that Duran's welfare would not be served by imposing an intermediate sanction, we remand the case for a new dispositional hearing.

         Factual and Procedural History

         In April 2016, Duran pleaded guilty to criminal possession of a weapon by a convicted felon. The weapon was a knife found during a pat-down search. The court sentenced him to 17 months in prison but released him on probation for 18 months. About a year later, the State alleged Duran violated the terms of his probation by committing new crimes. Duran pleaded guilty to the new crimes of criminal possession of a weapon by a convicted felon and possession of methamphetamine. This time the weapon was a 4-inch knife found in his car after a traffic stop.

         The court held a joint probation violation hearing and sentencing hearing. The court found that Duran qualified for presumptive prison for his new convictions. His counsel requested a dispositional departure, arguing Duran wanted to go to inpatient drug treatment. He explained that Duran was "maybe uncomfortable with the idea of getting out into the community immediately without going first to ...


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