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.
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.
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).
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.
from Sedgwick District Court; Terry L. Pullman, judge.
Jennifer C. Roth, of Kansas Appellate Defender Office, for
A. Koon, assistant district attorney, Marc Bennett, district
attorney, and Derek Schmidt, attorney general, for appellee.
Arnold-Burger, C.J., Hill, J., and Stutzman, S.J.
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).
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
and Procedural History
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.
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 ...