essential principle embodied in the Due Process Clause of the
Fourteenth Amendment to the United States Constitution is
this: The government may not deprive a person of a property
right or a liberty interest without affording that person the
opportunity to be heard in a meaningful way and at a
meaningful time to avert a wrongful deprivation of that right
Constitutional due process is an especially elastic concept
in that the protections required vary depending upon the
importance of the specific property right or liberty interest
State may not revoke the probation of a convicted felon who
is not mentally competent at the time of the revocation
Competency for due process purposes entails the capacity to
understand the nature and object of the proceedings, to
consult with a lawyer, and to assist in presenting a defense.
district court has the inherent authority to order a
competency evaluation as a means of extending constitutional
due process to a probationer facing revocation.
from Sedgwick District Court; Benjamin L. Burgess, judge.
Faflick Reynolds and Michelle A. Davis, of Kansas Appellate
Defender Office, for appellant.
A. Koon, assistant district attorney, Marc Bennett, district
attorney, and Derek Schmidt, attorney general, for appellee.
Powell, P.J., Pierron and Atcheson, JJ.
due process protections preclude district courts from
revoking the probation of convicted felons who have become
mentally incompetent and ordering they serve their underlying
sentences of imprisonment. The deprivation of liberty
inflicted on those probationers is sufficiently grave that
they must be able to understand and meaningfully participate
in the revocation proceedings. The Due Process Clause of the
Fourteenth Amendment to the United States Constitution
requires nothing less.
Sedgwick County District Court may have given Rodrigo
Gonzalez considerably less when it revoked his probation and
sent him to prison despite legitimate concerns he may not
have been competent during the revocation hearing. The
district court refused to order a competency evaluation for
Gonzalez because the statutory processes for those
evaluations do not explicitly apply to probation revocation
proceedings. But the absence of a statutory device cannot
negate a fundamental constitutional right. The district
court, therefore, erred in revoking Gonzalez' probation
without determining he was mentally competent. The error,
however, would be harmless if Gonzalez were competent then.
We, therefore, remand the case for further proceedings,
including either a retrospective or present competency
and Procedural History
outline some background facts and procedural history to put
this appeal in context. The State charged Gonzalez with
felony battery of a law enforcement officer in April 2017
because he refused to remove his shoes while he was being
booked into the Sedgwick County jail and then elbowed a
corrections officer attempting to move him to a "safety
cell" until he complied. The record indicates Gonzalez
was 37 years old and had numerous convictions for
misdemeanors and traffic offenses in Dodge City, Arkansas
City, and Wichita over the course of his adult life. He also
had a felony conviction for battery of a law enforcement
in the case, the lawyer appointed to represent Gonzalez
requested an evaluation to determine if he was mentally
competent to stand trial. As provided in K.S.A. 22-3202, the
district court ordered an evaluation and duly received a
report from the mental health professional who examined
Gonzalez. Following a hearing in June 2017, the district
court entered an order finding Gonzalez to be competent.
Neither the report nor a transcript of that hearing is part
of the record on appeal.
State and Gonzalez' lawyer reached an agreement calling
for Gonzalez to plead guilty with a sentencing recommendation
to the district court for a dispositional departure to
probation. The written plea agreement acknowledged
Gonzalez' history of mental illness and a related, though
unidentified, seizure disorder as factors that contributed to
and mitigated his wrongful conduct in the jail. The agreement
also recognized the availability of appropriate health care
in the community as a ground for the recommended sentence.
hearing in January 2018, the district court accepted
Gonzalez' guilty plea. The district court later sentenced
Gonzalez to 52 months in prison and, consistent with the
parties' agreement, granted the motion for a
dispositional departure to probation for 36 months.
July, the district court issued a warrant for Gonzalez
because he had tested positive for alcohol several times,
violating the terms of his probation. Gonzalez was taken into
custody on the warrant, and the district court ...