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State v. Tearney

Court of Appeals of Kansas

December 20, 2019

State of Kansas, Appellee,
v.
Jessica E. Tearney, Appellant.

         SYLLABUS BY THE COURT

         1. 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.

          Appeal from Wyandotte District Court; Bill Klapper, judge.

          James 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.

          Before Leben, P.J., Gardner, J., and McAnany, S.J.

          Gardner, J.

         Jessica 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 affirm.

         Factual and Procedural Background

         In 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).

         In June 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).

         In 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.

         When 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.

         In 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 ...


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