NOT DESIGNATED FOR PUBLICATION
No. 119,165
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DEREK A. HAYES,
Appellant.
MEMORANDUM OPINION
Appeal from Johnson District Court; SARA WELCH, judge. Opinion on remand filed December
11, 2020. Reversed and remanded with directions.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., GREEN and SCHROEDER, JJ.
PER CURIAM: Derek A. Hayes appealed the revocation of his probation and
imposition of his original sentence. Initially, we found the record supported the district
court's decision insofar as Hayes failed to comply with the conditions of probation after
receiving a departure sentence. Our decision was premised on the conclusion the 2017
amendments to K.S.A. 22-3716 applied if the probation violation occurred after the
effective date of the amendments. See K.S.A. 2019 Supp. 22-3716(c)(7)(B) (district court
may revoke probation and impose underlying sentence without having previously
imposed an intermediate sanction if probation was granted as result of dispositional
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departure); State v. Hayes, No. 119,165, 2019 WL 1496299, at *1-2. (Kan. App. 2019)
(unpublished opinion), petition for rev. granted September 29, 2020. Based on this
finding, we held moot Hayes' argument the district court failed to state with particularity
how Hayes remaining on probation would be a danger to himself or the community. 2019
WL 1496299, at *2. However, in State v. Coleman, 311 Kan. 332, 337, 460 P.3d 828
(2020), our Supreme Court held the 2017 amendments to K.S.A. 22-3716 only applied to
those persons whose crimes of conviction occurred after the effective date of the
amendments. In light of Coleman, our Supreme Court granted review, summarily vacated
our Hayes opinion, and remanded the matter to us for further consideration.
We agree with Hayes the district court failed to state with particularity how Hayes
remaining on probation would be a danger to himself or the community. See K.S.A. 2019
Supp. 22-3716(c)(7)(A) (district court may revoke probation and impose underlying
sentence without having previously imposed intermediate sanction if "[t]he court finds
and sets forth with particularity the reasons for finding that the safety of members of the
public will be jeopardized or that the welfare of the offender will not be served by such
sanction"). Accordingly, we reverse and remand to the district court to consider what
sanction should be imposed under K.S.A. 2015 Supp. 22-3716, the statute in effect at the
time Hayes committed his crime.
FACTS
On March 10, 2016, Hayes pled guilty to distribution of THC. The district court
granted him a downward dispositional departure sentence of 68 months' imprisonment
suspended to 36 months' probation. Hayes' probation conditions required him to report to
his probation officer as directed; not violate Kansas law or laws of any other state; pay
court costs at a rate of $50 per month starting July 6, 2016; and refrain from possessing or
consuming alcohol or other drugs.
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The State moved to revoke Hayes' probation for failing to report as directed and
failing to pay any court costs. He stipulated to violating his probation based on both
allegations. Upon accepting his stipulation, the district court found Hayes violated his
probation and continued the hearing for disposition. The record reflects Hayes was also
convicted in Missouri of fleeing and eluding police while on probation. At the
dispositional hearing, the State asked the district court to revoke Hayes' probation under
K.S.A. 2019 Supp. 22-3716(c)(9)(B) because the district court granted him a
dispositional departure at sentencing and Hayes violated his probation conditions. Hayes
asked the district court to continue his probation conditioned on him completing drug
treatment because he did not believe he would be able to address his drug use in prison.
The district court revoked Hayes' probation, finding Hayes:
• violated his probation;
• received a downward dispositional departure at sentencing;
• was convicted in Missouri while on probation for fleeing and eluding police;
and
• stipulated to violating his probation.
The district court stated: "[Hayes] was given probation when he, by the
sentencing guidelines, should've been in prison, and then goes out and commits a new
crime, one that puts the public at risk while on this probation. I think sufficient resources
have been expended on Mr. Hayes." In the journal entry revoking Hayes' probation, the
district court noted it did not impose intermediate sanctions because "[defendant was]
granted departure and community safety." The district court did not elaborate on its
concerns for community safety.
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ANALYSIS
Hayes argues the district court should have imposed intermediate sanctions instead
of revoking his probation. For a first probation violation the district court is required to
impose an intermediate sanction rather than a defendant's underlying sentence unless an
exception applies. See K.S.A. 2019 Supp. 22-3716(c). The district court relied on two of
these exceptions—the dispositional departure sentence and public safety exceptions. See
K.S.A. 2019 Supp. 22-3716(c)(7)(A) and (B). However, the district court erred in relying
on the dispositional departure exception because it does not apply retroactively. See
Coleman, 311 Kan. at 337. Hayes committed the offense on March 10, 2016. The
dispositional departure exception did not become effective until July 1, 2017. See L.
2017, ch. 92, § 8. The district court's reliance on this exception was, therefore, an error of
law. Accordingly, the district court abused its discretion in relying on the exception to
revoke Hayes' probation. See State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018)
(judicial action constitutes abuse of discretion if it is "arbitrary, fanciful, or unreasonable;
is based on an error of law; or is based on an error of fact."); State v. Gumfory, 281 Kan.
1168, 1170, 135 P.3d 1191 (2006) (appellate court reviews district court's decision to
revoke probation for abuse of discretion).
In light of State v. Clapp, 308 Kan. 976, 988-90, 425 P.3d 605 (2018), we agree
with Hayes' argument the district court's revocation of his probation for public safety
lacked particularity. Therefore, we reverse and remand to the district court to consider
what sanction should be imposed under K.S.A. 2015 Supp. 22-3716 and to make the
appropriate findings on the record to support its decision.
Reversed and remanded with directions.
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