State v. Tearney

No. 120,340

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

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. Opinion filed December 20, 2019.
Affirmed.

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.

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 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

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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. 117,022, 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

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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

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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.

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

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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 118,818, 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. 118,673, 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: the statute must apply to events before its enactment and it
must disadvantage an offender); see also State v. Petersen-Beard, 304 Kan. 192, 196, 377

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P.3d 1127 (2016) (an offender is disadvantaged by application of a punitive statute). Yet
Tearney makes no ex post facto or other constitutional claims here.

The Coleman panel rejected the State's argument that another subsection of the
statute—K.S.A. 2017 Supp. 22-3716(c)(12)—showed that our Legislature intended for
the dispositional departure exception to apply retroactively to probation violations
committed on or after July 1, 2013. 2018 WL 6580094, *4. The State makes that same
argument here.

K.S.A. 2017 Supp. 22-3716(c)(12) specifically addresses retroactivity: "The
violation sanctions provided in this subsection shall apply to any violation of conditions
of release or assignment or a nonprison sanction occurring on and after July 1, 2013,
regardless of when the offender was sentenced for the original crime or committed the
original crime for which sentenced."

The statute's provision stating that the violation sanctions provided "in this
subsection" shall apply to any violation of probation after July 1, 2013 (K.S.A. 2017
Supp. 22-3716[c][12]), was in effect when the Legislature added the dispositional
departure exception to that same subsection in 2017 (K.S.A. 2017 Supp. 22-
3716[c][9][B]). The language in subsection (c)(12) that the violation sanctions provided
in this subsection apply "regardless of when the offender was sentenced for the original
crime or committed the original crime for which sentenced" shows the legislature
contemplated the situation here. K.S.A. 2017 Supp. 22-3716(c)(12). A plain reading of
this statute convinces us that the legislature intended the dispositional departure
exception, also in subsection (c), to apply to crimes committed on or after July 1, 2013.
Had they not intended that result, they could have easily put the dispositional departure
exception in a subsection other than subsection (c) or could have amended the language
of subsection (c)(12).

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 Another panel of our court has addressed the interplay of the dispositional
departure exception and K.S.A. 2017 Supp. 22-3716(c)(12), reaching the same result:

"Importantly, this language specifically says that the provisions 'in this subsection' are
included. When the Legislature added K.S.A. 2017 Supp. 22-3716(c)(9)(B) in 2017, it
was fully aware of the retroactivity language in K.S.A. 2017 Supp. 22-3716(c)(12) and it
did not alter or amend the language in any way. See In re Tax Appeal of American
Restaurant Operations, 264 Kan. 518, 524, 957 P.2d 473 (1998) ('The legislature is
presumed to know the law.')." Stuart, 2018 WL 6424250, at *3.

We agree with that analysis.

Tearney argues that this court rejected that result in State v. Kurtz, 51 Kan. App.
2d 50, 340 P.3d 509 (2014). Kurtz held that "the date that controls the law that applies to
the imposition of sanctions for violating probation is the law that existed when a
defendant violated probation, not the law that existed when the defendant committed the
underlying crime . . . nor the law in effect when the probation hearing
occurred." 51 Kan. App. 2d at 56. But Kurtz had violated his probation in June 2013,
before subsection (c)(12) took effect on July 1, 2013, so the sanction provisions did not
apply—sanctions "apply to any violation of conditions of release or assignment or a
nonprison sanction occurring on and after July 1, 2013." K.S.A. 2017 Supp. 22-
3716(c)(12).

We believe Judge Malone's dissent in Coleman properly considered the holding in
Kurtz and the application of K.S.A. 2017 Supp. 22-3716(c)(12). In that dissenting
opinion, Judge Malone found that "K.S.A. 2017 Supp. 22-3716(c)(12) expresses a
legislative intent that the intermediate sanction provisions of K.S.A. 2017 Supp. 22-
3716(c) apply retroactively to any probation violation occurring on or after July 1, 2013."
2018 WL 6580094, at *5. He noted that Coleman's majority read too much into the Kurtz
holding:

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 "The court in Kurtz was simply making the point that whether the sanction provisions of
K.S.A. 2017 Supp. 22-3716(c) apply depends on the date the defendant violated his or
her probation, rather than when the original crime was committed or when the defendant
was originally sentenced. The court found that the sanction provisions did not apply in
that case because Kurtz violated his probation in June 2013, before the new law went into
effect on July 1, 2013. But there is nothing about the holding in Kurtz that prevented the
district court in Coleman's case from applying the provisions of K.S.A. 2017 Supp. 22-
3716(c)(9)(B) to Coleman's probation violation even though this provision became
effective after Coleman absconded in January 2017." 2018 WL 6580094, *5.

We believe this reading of K.S.A. 2017 Supp. 22-3716(c)(12) corresponds more
appropriately with the plain language and other rules of statutory construction than does
Coleman's majority opinion. The intermediate sanction provisions of K.S.A. 2017 Supp.
22-3716(c) apply retroactively to any probation violation occurring on or after July 1,
2013. As a result, the dispositional departure exception, enacted on July 1, 2017, applies
to Tearney's probation violations which occurred in 2016, even though her violations
occurred before that exception took effect.

II. IS IT UNFAIR TO APPLY THIS STATUTE RETROACTIVELY?

Tearney next argues that even if the dispositional departure exception may apply
retroactively, it would be unfair to apply that exception here. Tearney relies on the
premise that "courts do not give retroactive effect to changes in the law when doing so
would result in manifest injustice." White v. State, 308 Kan. 491, 502, 421 P.3d 718
(2018). Tearney contends that manifest injustice exists because it would be "obviously
unfair" to allow the district court to employ the dispositional departure exception on
remand when it could not have used that exception on the date she violated her probation.
See Vontress v. State, 299 Kan. 607, 614, 325 P.3d 1114 (2014) (defining "manifest
injustice" as "obviously unfair," when considering the timeliness of K.S.A. 60-1507
motions).

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 We are not persuaded. The "fairness" of applying the dispositional departure
statute retroactively is a policy question that the Legislature has already decided. The
plain language of K.S.A. 2017 Supp. 22-3716(c)(12), read together with K.S.A. 2017
Supp. 22-3716(c)(9)(B), permits the district court to employ the dispositional departure
exception on remand even though it could not have applied that exception in 2016 when
Tearney violated her probation. We understand how Tearney could consider that result
unfair. But "courts 'are not free to act on . . . [their own] view of wise public policy' in
matters governed by legislation. Courts should instead 'leave the guidance of public
policy through statutes to the legislature.' [Citations omitted.]" In re Marriage of Hall,
295 Kan. 776, 784, 286 P.3d 210 (2012).

A separate reason cuts against Tearney's argument of unfairness. When the district
court revoked Tearney's probation, Tearney's case was not final. Changes in the law
generally apply to cases not yet final. See State v. Mitchell, 297 Kan. 118, 124-25, 298
P.3d 349 (2013). And when we remanded Tearney's case for a new dispositional hearing
we did not order the district court to impose an intermediate sanction. So the district court
did not violate the remand order even though it revoked Tearney's probation at the close
of the new dispositional hearing. We find no manifest injustice.

We find it unnecessary to reach Tearney's argument that the district court failed to
state specifically enough its alternative finding that her welfare was jeopardized. See
K.S.A. 2017 Supp. 22-3716(c)(9)(A).

Affirmed.

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