BY THE COURT
K.S.A. 2017 Supp. 22-3716(c)(9)(B) permits a district court
to revoke a defendant's probation without having imposed
a graduated sanction if probation was originally granted as
the result of a dispositional departure. This dispositional
departure exception, enacted on July 1, 2017, applies to
probation violations which occur after July 1, 2013, even
when those violations occurred before the dispositional
departure exception took effect.
from Wyandotte District Court; Bill Klapper, judge.
M. Latta, of Kansas Appellate Defender Office, for appellant.
Christopher L. Schneider, assistant district attorney, Mark
A. Dupree Sr., county attorney, and Derek Schmidt, attorney
general, for appellee.
Leben, P.J., Gardner, J., and McAnany, S.J.
E. Tearney's probation violation case is before us a
second time. We remanded it the first time because the
district court improperly revoked her probation, erroneously
believing that Tearney had served two intermediate sanctions,
as our statute generally requires. While Tearney's case
was on appeal the first time, the law changed. The
Legislature enacted a new exception to rule requiring
intermediate sanctions-the dispositional departure exception.
K.S.A. 2017 Supp. 22-3716(c)(9)(B). On remand, the district
court applied that new exception and again revoked
Tearney's probation. Tearney appeals, claiming that
dispositional departure exception does not apply
retroactively and that no other exception permitted the
district court to revoke her probation. Finding no error, we
and Procedural Background
2014, Tearney pleaded no contest to one count of distributing
narcotics within 1, 000 feet of a school. That offense
warrants a presumptive prison sentence. So the district court
sentenced Tearney to an underlying term of 49 months in
prison and 36 months of postrelease supervision, but it
granted her motion for a dispositional departure and placed
her on probation for 36 months. It also ordered her to
register as an offender pursuant to the Kansas Offender
Registration Act (KORA).
2015, Tearney violated her probation in her distribution
case. As a result, the district court ordered Tearney to
serve a three-day, "quick dip" jail sanction, with
credit for time served. This complied with our statutes,
which, with certain exceptions, generally require the
district court to impose two intermediate sanctions (a
three-day jail term and a 120 or 180-day jail term) before
revoking a violator's probation and imposing the original
sentence. See K.S.A. 2014 Supp. 22-3716(c).
October 2015, the State moved to revoke Tearney's
probation because she had committed new violations. The State
also charged Tearney in a separate case with four counts of
violating KORA. Tearney pleaded guilty to two counts of
violating KORA and the district court dismissed the remaining
two counts in accordance with Tearney's plea agreement.
But the district court did not discuss Tearney's October
2015 probation violations in her distribution case, and
Tearney has apparently never been sanctioned for them.
sentencing Tearney for her two KORA violations, the district
court followed the plea agreement. It sentenced Tearney to
two concurrent terms of 18 months' imprisonment with 24
months of postrelease supervision, then suspended her
sentence to 24 months of probation. Although Tearney was in
custody awaiting sentencing in the KORA case, the district
court incorrectly believed that she was serving a 120-day
intermediate sanction for her October 2015 violations of
probation in her distribution case. As a result, the district
court released Tearney from custody.
2016, Tearney again violated her probation in her
distribution case and in her KORA case, as she admitted. The
district court revoked Tearney's probation in her
distribution case because it thought she had served two
intermediate sanctions. But Tearney had never served a second
sanction. The district court also revoked Tearney's
probation in the KORA case because it found that her
well-being would be better served if she ...