State v. Tearney

457 P.3d 178

STATE of Kansas, Appellee,

v.Jessica E. TEARNEY, Appellant.

No. 120,340

Court of Appeals of Kansas.

Opinion filed December 20, 2019

James M. Latta, of Kansas Appellate Defender Office, for appellant.

Christopher L. Schneider, assistant district attorney, Mark A. Dupree Sr., district 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 were incarcerated and that she was not amenable to probation because of her drug use. Tearney appealed both decisions.

On appeal, this court reversed the district court's decision in part and affirmed it in part. See State v. Tearney , No. 117022, 2018 WL 2748573, at *4 (Kan. App. 2018) (unpublished opinion). The Tearney panel found that the district court erred in revoking Tearney's probation in her distribution case because it lacked statutory authority to revoke without first imposing the required 120-day or 180-day intermediate prison sanction. 2018 WL 2748573, at *3. The panel, however, rejected Tearney's argument that the district court had failed to make particularized findings when revoking her probation in the KORA case. So the panel affirmed the district court's decision on Tearney's KORA case and reversed the decision in her distribution case. 2018 WL 2748573, at *4.

On remand, after hearing arguments from the parties, the district court again revoked Tearney's probation in her distribution case. The district court relied on two grounds:

• K.S.A. 2017 Supp. 22-2716(c)(9)(B), which permits revocation of probation without having imposed a graduated sanction if "probation ... was originally granted as the result of a dispositional departure."

• K.S.A. 2017 Supp. 22-3716(c)(9)(A), which permits revocation of probation without having imposed a graduated sanction if "[t]he court finds and sets forth with particularity the reasons for finding that ... the welfare of the offender will not be served by such sanction."

It found Tearney's welfare was "jeopardized by her failure ... to seek drug treatment and continue to give positive UAs."

Tearney timely appeals. She contends (1) the dispositional departure exception was not in effect when she violated her probation so it should not apply to her; and (2) the district court failed to state with particularity the reasons for finding that her welfare would not be served by an intermediate sanction.

I. DID THE DISTRICT COURT ERR BY REVOKING TEARNEY'S PROBATION WITHOUT IMPOSING AN INTERMEDIATE SANCTION ?

We first address Tearney's argument that the district court erred in retroactively applying K.S.A. 2017 Supp. 22-3716(c)(9)(B) to revoke her probation. That statute 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. Tearney concedes that her probation was originally granted as the result of a dispositional departure, but she contends that this statute was not in effect when she violated her probation so it should not apply to her.

This issue raises a question of law, over which we exercise de novo review. State v. McFeeters , 52 Kan. App. 2d 45, 47-48, 362 P.3d 603 (2015). Likewise, we also exercise unlimited review over statutory interpretation. State v. Alvarez , 309 Kan. 203, 205, 432 P.3d 1015 (2019). The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be determined. State v. LaPointe , 309 Kan. 299, 314, 434 P.3d 850 (2019). We must first attempt to determine legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Ayers , 309 Kan. 162, 163-64, 432 P.3d 663 (2019). When a statute is plain and unambiguous, we should not speculate about the legislative intent behind that clear language, and we should refrain from reading something into the statute that is not readily found in its words. 309 Kan. at 164, 432 P.3d 663.

Preservation

Before addressing whether the dispositional departure exception should apply here, we must first address the State's argument that Tearney failed to raise that issue below so the panel should refuse to consider it on appeal. Tearney concedes that she did not raise this issue before the district court. It is well-established that issues not raised before the district court cannot be raised on appeal. See State v. Kelly , 298 Kan. 965, 971, 318 P.3d 987 (2014).

But an exception exists when a newly asserted theory involves only a question of law arising on proved or admitted facts and finally determines the case. State v. Phillips , 299 Kan. 479, 493, 325 P.3d 1095 (2014). Tearney asserts this exception here. Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 34) requires an appellant to explain why an issue not raised below should be considered for the first time on appeal. Litigants who flout this rule risk a ruling that the issue is improperly briefed and will be considered waived or abandoned. State v. Williams , 298 Kan. 1075, 1085, 319 P.3d 528 (2014). Our Supreme Court strictly enforces that rule. State v. Godfrey , 301 Kan. 1041, 1044, 350 P.3d 1068 (2015). To meet that standard, Tearney cites State v. Stuart , No 118818, 2018 WL 6424250, at *2 (Kan. App. 2018) (unpublished opinion). She argues that we should consider her argument because we previously considered a similar unpreserved argument on appeal. We find that Tearney has sufficiently addressed the preservation issue so we will consider the merits of her claim.

Retroactive Application of the Dispositional Departure Exception

K.S.A. 22-3716(c) generally requires district courts to impose intermediate sanctions for probation violations before revoking probation. Even so, under K.S.A. 2017 Supp. 22-3716(c)(9)(B), the district court may 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 took effect on July 1, 2017, after Tearney violated her probation. See L. 2017, ch. 92, § 8.

Tearney argues that the dispositional departure exception does not apply retroactively, citing State v. Coleman , No. 118673, 2018 WL 6580094 (Kan. App. 2018), rev. granted 310 Kan –––– (Sept. 3, 2019). In Coleman , a panel of this court found that this dispositional departure exception was punitive, so applying it retroactively would violate the Ex Post Facto Clause. See 2018 WL 6580094, at *3-4 (citing Weaver v. Graham , 450 U.S. 24, 28-29, 101 S. Ct. 960, 67 L. Ed. 2d 17 [1981] ) (violation of the Ex Post Facto Clause has two elements: ...