NOT DESIGNATED FOR PUBLICATION
No. 121,779
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
KIRK E. ALLEN,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; SETH L. RUNDLE, judge. Opinion filed January 15, 2021.
Affirmed.
Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.
Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before ARNOLD-BURGER, C.J., HILL and ATCHESON, JJ.
PER CURIAM: Defendant Kirk E. Allen admitted to violating the terms of his
probation and later thought better of his decision when the Sedgwick County District
Court ordered him to serve his 52-month prison sentence. Allen filed a motion to
withdraw his admissions. The district court declined to consider the motion, and Allen
has appealed. Allen contends he has a constitutional due process right to withdraw his
admissions or, alternatively, this court should create a common-law right for him to do
so. Absent a statute allowing a probationer to withdraw admissions to violations—and
there is no such statute in Kansas—defendants in Allen's position cannot lay claim to
1
such relief in their criminal cases. We, therefore, find no legal basis for disturbing the
district court's order revoking Allen's probation and sending him to prison.
FACTUAL AND PROCEDURAL HISTORY
Under an agreement with the State, Allen pleaded no contest in 2015 to an
amended charge of commercial sexual exploitation of a child, a felony violation of
K.S.A. 2013 Supp. 21-6422. The factual circumstances of the crime are irrelevant to the
issue before us. Consistent with the agreement, the district court later sentenced Allen to
52 months in prison. In the plea agreement, Allen reserved the right to request probation;
the district court granted his request, placing him on probation for 36 months.
The State filed a warrant in August 2017 alleging Allen violated the conditions of
his probation by possessing a handgun and by "associating with" persons attempting to
purchase cocaine. Allen was taken into custody on the warrant and appeared with his
lawyer at a probation revocation hearing on November 9, 2017.
At that hearing, Allen's retained lawyer informed the district court that Allen did
not intend to contest the violations. The district court advised Allen that he had a right to
an evidentiary hearing at which the State would have to prove the violations by a
preponderance of the evidence and that his lawyer could cross-examine the State's
witnesses and present witnesses and other evidence on Allen's behalf. Allen
acknowledged he was waiving those rights by not contesting the allegations in the
warrant. The district court then recited each violation in the warrant and asked Allen
personally if he admitted the violation for purposes of the probation revocation
proceeding. Allen stated that he did. The district court found that Allen "knowingly and
voluntarily waived his right to a hearing" and accepted his admission that the probation
violations in the warrant were true. The district court continued the hearing, allowing the
State and Allen to later address an appropriate sanction for the probation violations.
2
Allen again appeared with his lawyer on December 1, 2017, when the district
court took up what to do with Allen. The State recommended that Allen serve the
underlying prison sentence. Allen and his lawyer made a lengthy presentation for an
intermediate jail sanction with reinstatement of probation. Allen personally pointed to his
gainful employment and his financial and direct parental support for his children in
asking for another opportunity on probation. Based on Allen's underlying crime of
conviction and the nature of the admitted violations, the district court revoked Allen's
probation and ordered that he serve the 52-month prison sentence.
Two weeks later, a newly retained lawyer filed a motion on Allen's behalf to
withdraw his admissions to the probation violations alleged in the warrant. The case was
continued several times as Allen changed lawyers, and the district court finally appointed
a public defender to represent him. In August 2019, the district court heard argument on
Allen's motion to withdraw his admissions to the probation violations. The district court
concluded it had "no jurisdiction" to consider the motion because Allen had no legal right
to relief. The district court denied the motion on that basis and expressly declined to rule
on Allen's argument that his admissions were not knowingly and voluntarily made. Allen
has appealed.
LEGAL ANALYSIS
The single issue on appeal is the propriety of the district court's failure to grant
Allen relief on the motion to withdraw his admissions to the probation violations. Allen
has not otherwise challenged the revocation of his probation and the order requiring him
to serve the underlying prison sentence. There are no disputed facts bearing on this point,
so we address a question of law. And we owe no particular deference to the district
court's answer to that question. See State v. Bennett, 51 Kan. App. 2d 356, 361, 347 P.3d
229 (2015); Estate of Belden v. Brown County, 46 Kan. App. 2d 247, 258-59, 261 P.3d
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943 (2011). We begin there, recognizing we may affirm the district court if it reaches
what is functionally the right result for the wrong reason. State v. Smith, 309 Kan. 977,
986, 441 P.3d 1041 (2019).
Jurisdiction to Hear Allen's Motion
The district court incorrectly reasoned that it lacked jurisdiction to consider Allen's
motion because it saw no plausible legal basis for granting relief. As we explain, Allen
had no right to withdraw his admissions to the probation violations in this case. But the
district court had jurisdiction—the broad legal authority—to consider the motion and to
deny it as lacking any legal basis. District courts have general jurisdiction encompassing
criminal prosecutions and the constituent components of those prosecutions, including
granting and revoking probation. The district court had jurisdiction over this case and,
therefore, had the authority to decide Allen's motion. The district court's authority did not
vanish because Allen requested relief he could not receive in a probation revocation. The
district court improperly premised its ruling on a lack of jurisdiction, blurring the very
real difference between a meritless request for relief and one outside the court's authority
to consider at all.
In a criminal case, the district court typically loses jurisdiction when a party
(commonly the defendant) dockets an appeal. Jurisdiction effectively shifts to the
appellate court hearing the appeal. Allen did not docket his appeal until after the district
court denied his motion to withdraw his admissions. The parties have not suggested some
other jurisdictional bar would have precluded the district court from deciding the motion
on the merits. Although we have not shined a bright light in every nook and cranny, we
see no readily apparent jurisdictional bar. See State v. Marinelli, 307 Kan. 768, Syl. ¶ 1,
415 P.3d 405 (2018) (appellate court has obligation to question jurisdiction even when
parties have not).
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Our concurring colleague, however, offers an entirely different take on
jurisdiction—one not advanced by the district court or the State—and would dismiss
Allen's appeal for that reason. Although all of us agree Allen gets no relief, Chief Judge
Arnold-Burger reads too much into State v. Miller, 260 Kan. 892, 902-04, 926 P.2d 652
(1996), abrogated on other grounds by State v. Berreth, 294 Kan. 98, 273 P.3d 752
(2012), in finding a jurisdictional bar to Allen's claims. In Miller, the court held that after
a district court has revoked a defendant's probation and ordered him or her to serve a
prison sentence, it lacks the authority (or jurisdiction) to go back and reinstate the
probation, presumably as a reconsidered act of leniency. But the court held no more than
that. 260 Kan. at 903 ("The district court lacked jurisdiction to reinstate Miller's probation
. . . after committing her to the custody of the Secretary of Corrections."). In a companion
case consolidated in that appeal, the court similarly held that once a district court imposes
a lawful guidelines sentence, it lacks the authority to later modify the sentence. 260 Kan.
at 903.
But Allen has not sought a district court order reinstating his probation. He has
asked to withdraw his admissions to the violations—relief that would restore the
revocation process to its initial stage. The State then would be required to prove the
violations. Assuming the State did, the district court could again send Allen to prison,
although in theory it presumably could reinstate probation. If the State failed to prove the
violationsd, the warrant should be dismissed, leaving Allen's original probation intact. All
of that is materially different from a defendant's motion asking a district court to
reconsider its decision to revoke. Because of those procedural and substantive variations,
we do not see Miller as controlling authority mandating dismissal for lack of jurisdiction.
The additional cases Chief Judge Arnold-Burger cites simply restate one or the other of
Miller's holdings that a district court lacks jurisdiction to modify a sentence after it has
been pronounced or to reconsider a decision to revoke probation. So they do not advance
some broader argument for lack of jurisdiction here.
5
Allen Shifts from Statutory to Constitutional Basis for Motion to Withdraw
In the district court, Allen relied, in large part, on the statute permitting a
defendant to withdraw guilty or no contest pleas to support his motion. See
K.S.A. 2019 Supp. 22-3210(d). But K.S.A. 2019 Supp. 22-3210(d) is confined to the
disposition of the criminal charges themselves and does not encompass probation
revocation proceedings. Allen, therefore, cannot successfully rest his motion on K.S.A.
2019 Supp. 22-3210(d) as direct statutory authority permitting him to withdraw his
admissions to the alleged probation violations. The argument impermissibly adds
something plainly not found in the statute. Courts cannot manipulate statutes that way.
See State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009); Green v. General Motors
Corp., 56 Kan. App. 2d 732, 735, 437 P.3d 94 (2019) ("Judicial interpretation should
avoid adding something to the statutory language or negating something already there.").
Likewise, K.S.A. 2019 Supp. 22-3210(d) does not offer some persuasive authority
for inferring a comparable right in probation revocation hearings. The Legislature has
adopted detailed procedures governing the district court's revocation of probation; and
allowing a probationer to withdraw admissions of alleged violations is conspicuously
missing. See K.S.A. 2019 Supp. 22-3716(a), (b). The Legislature could have provided
such a right but has not done so. We should not augment the statutory scheme simply
because we might think it a good idea to allow probationers to withdraw their admissions.
See State v. Spencer Gifts, LLC, 304 Kan. 755, Syl. ¶ 4, 374 P.3d 680 (2016) ("Questions
of public policy are for legislative and not judicial determination, and where the
legislature declares a policy, and there is no constitutional impediment, the question of
the wisdom, justice, or expediency of the legislation is for that body and not for the
courts.").
In the district court, Allen also argued that a defendant admitting a probation
violation must do so knowingly and voluntarily. He did not tie such a requirement to a
6
particular statutory or constitutional right. But Allen submitted he was entitled to an
evidentiary hearing on his motion to show that he had not made knowing and voluntary
admissions and, therefore, should be allowed to withdraw them.
On appeal, Allen has moved away from his statutory arguments and advances only
a constitutional due process right as the legal foundation for the motion to withdraw his
admissions. He cites the Due Process Clause of the Fourteenth Amendment to the United
States Constitution and sections 1 and 18 of the Kansas Constitution Bill of Rights as the
sources of his asserted constitutional right. We consider those arguments, although they
were not formally or precisely presented to the district court. See State v. Patterson, 311
Kan. 59, 62, 455 P.3d 792 (2020).
Allen suggests he has due process rights under § 18 that are coextensive with his
Fourteenth Amendment Due Process rights. Given that suggestion, we simply assume
without deciding that defendants are afforded procedural due process protections in
criminal actions through § 18 that match their federal due process rights. See Hodes &
Nauser, MDs v. Schmidt, 309 Kan. 610, 627, 440 P.3d 461 (2019) (recognizing § 18 as "a
due process provision"); State v. Boysaw, 309 Kan. 526, 537-38, 439 P.3d 909 (2019)
(noting § 18 historically construed to afford same protections as federal constitution). But
§ 18 has generally been viewed as preserving common-law rights to redress for personal
injuries and property damage through the judicial process. See Kansas Medical
Malpractice Victims Coalition v. Bell, 243 Kan. 333, 346-47, 757 P.2d 251 (1988).
Allen submits that under § 1, as construed in Hodes & Nauser, he has due process
rights that may exceed those guaranteed in the Fourteenth Amendment. He neither
identifies those additional protections nor develops a legal argument for their existence.
His position is not self-evident from Hodes & Nauser. Section 1 constitutionalizes what
are described as natural rights. When the Kansas Constitution was adopted in 1859, the
framers sought to ban slavery—one human being's ownership of another human being as
7
chattel—as irreconcilable with natural rights of life, liberty, and the pursuit of happiness
identified in § 1. See Kan. Const. Bill of Rights § 6 (banning slavery).
But § 1 is not confined to slavery. The natural rights protected in § 1 encompass
"personal autonomy" and "self-determination" and, as such, are "broader than and distinct
from" the rights in the Fourteenth Amendment. Hodes & Nauser, 309 Kan. 610, Syl. ¶¶ 6
and 8. The appellate courts, however, have sometimes characterized § 1 and § 2 of the
Kansas Constitution Bill of Rights as analogous to the Equal Protection and Due Process
Clauses of the Fourteenth Amendment. 309 Kan. at 620. Based on Allen's limited
argument, we are unpersuaded § 1 embodies an otherwise undefined set of procedural
protections reaching quotidian aspects of criminal prosecutions, such as probation
revocations. Assuming without deciding that § 1 does have a due process component, we
consider it coextensive with the procedural due process protections of the Fourteenth
Amendment.
In short, the issue for our consideration turns on the procedural due process
protections afforded probationers under the Fourteenth Amendment—protections
consistent with any that might be found in sections 1 and 18 of the Kansas Constitution
Bill of Rights.
Due Process Rights of Probationers
Convicted criminal defendants have no particular constitutional right to probation.
And the State may preclude probation for certain crimes. See, e.g., Harmelin v. Michigan,
501 U.S. 957, 994-96, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (upholding mandatory
sentence of life in prison for drug conviction). Nonetheless, when probation is available
as a sentencing option, certain constitutional safeguards attach. So a district court cannot
grant or withhold probation based on a defendant's protected class characteristics such as
race or religion. See United States v. Leung, 40 F.3d 577, 586 (2d Cir. 1994). (That's an
8
equal protection right rather than a matter of due process.) Likewise, probationers are
entitled to fair notice of the terms and conditions they must abide while on probation.
State v. Mireles, No. 102,997, 2011 WL 135027, at *4 (Kan. App. 2011) (unpublished
opinion). Allen's claim does not call into question those principles governing placement
of a defendant on probation.
More to the point, a felony probationer has a constitutionally protected liberty
interest in his or her probation once granted and is, therefore, entitled to procedural due
process protections before being revoked. We recently outlined those rights:
"Probationers facing revocation and imprisonment on felony convictions
indisputably have a liberty interest triggering constitutional due process protections.
Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); State v.
Hall, 287 Kan. 139, 143, 195 P.3d 220 (2008). Because they already have been convicted
of crimes and confront the loss of a sentencing disposition that spared them incarceration,
probationers are not entitled to the same due process protections as defendants with
impending trials to determine their guilt or innocence. 411 U.S. at 781. The Gagnon
Court drew heavily from Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 33 L.
Ed. 2d 484 (1972), in which it considered the due process requirements for resolving
disputed parole violations. In Gagnon, the Court identified the constitutionally necessary
components of due process in a probation revocation proceeding, borrowing directly from
Morrissey: (1) written notice of the alleged violations prompting the government's
request to revoke; (2) disclosure of the evidence upon which the government will rely; (3)
the right to be heard in person and to present witnesses and other evidence to refute the
grounds for revocation; (4) the opportunity to confront and cross-examine adverse
witnesses absent 'good cause' to limit or suspend that examination; (5) a neutral hearing
officer and decisionmaker; and (6) a written statement from the fact-finder as to the
evidence relied upon and the reasons for revoking probation. 411 U.S. at 786." State v.
Gonzalez, 57 Kan. App. 2d 618, 623-24, 457 P.3d 938 (2019).
In addition, a probationer may be entitled to legal representation in a revocation
proceeding as a constitutional due process right depending on the circumstances of the
9
case. 57 Kan. App. 2d at 624. A probationer has a statutory right to appear with a lawyer
as guaranteed in K.S.A. 2019 Supp. 22-3716(b)(2), and the district court must appoint a
lawyer for a probationer unable to afford one. The statute also substantially codifies the
due process rights recognized in Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756,
36 L. Ed. 2d 656 (1973), and outlined in Gonzalez, 57 Kan. App. 2d at 623-24.
More broadly, procedural due process protections are calibrated to the nature of
the liberty interest or property right at stake—the more important the interest or right the
greater the constitutionally required procedures aimed at averting a wrongful deprivation.
See Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) ("The
fundamental requirement of due process is the opportunity to be heard 'at a meaningful
time and in a meaningful manner.'"); Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306, 313, 70 S. Ct. 652, 94 L. Ed. 865 (1950) (The Due Process Clause "at a
minimum" requires that "deprivation of life, liberty, or property by adjudication be
preceded by notice and opportunity for hearing appropriate to the nature of the case.").
Accordingly, as the Gonzalez court pointed out, "Constitutional due process is an
especially elastic concept." 57 Kan. App. 2d 618, Syl. ¶ 2.
Pertinent here, probationers are not entitled to the same high degree of procedural
due process as criminal defendants facing trial on felony charges. And the due process
rights identified in Gagnon and K.S.A. 2019 Supp. 22-3716(b)(2) are geared toward
hearings to adjudicate the probationers' alleged violations of the terms and conditions of
their probations. Individuals may waive their constitutional rights, including those
guaranteed in the Due Process Clause, if they do so knowingly and voluntarily. See
Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); State
v. Beaman, 295 Kan. 853, 858, 286 P.3d 876 (2012) (right to jury trial); State v. Jones,
290 Kan. 373, 376, 228 P.3d 394 (2010) (right to counsel). Probationers are no exception.
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Allen's Due Process Claim Considered
After the district court declined to reinstate Allen's probation, Allen asserted that
his lawyer did not adequately explain the implications of waiving his right to a hearing on
the alleged violations and failed to investigate the facts surrounding the allegations. Allen
made those assertions in an entirely conclusory fashion in a two-page motion to withdraw
his admissions to the violations. We now must determine whether probationers have a
constitutional due process right to withdraw their admissions to violations by motion and
hearing after a district court has revoked their probation.
We are unpersuaded the process due probationers under the Fourteenth
Amendment encompasses such a right. We come to that conclusion in no small part
because probationers already have habeas corpus protections against constitutionally
deficient legal representation affording similar relief with less chance for abuse.
Allen's motion and its assertions illustrate the risks for misuse of such a procedural
mechanism. Without explanation or detail, Allen claimed his lawyer inadequately
informed him of the consequences of waiving a hearing on the probation violations and
agreeing to those violations. To resolve the claim, the district court would have had to
hold an evidentiary hearing at which Allen would be represented by his new lawyer. (The
district court would have had to appoint a lawyer for Allen if he could not afford to hire
one.) Allen, through his new lawyer, presumably would call his previous lawyer as a
witness to show the inadequacy of his legal representation. Allen might call other
witnesses and likely would testify himself. As we have said, if he were successful on his
motion, Allen would be allowed to withdraw his admissions to the underlying probation
revocations. The revocation process would simply be rewound to its initial stage. Without
Allen's waiver, the State would then have to prove the alleged probation violations by a
preponderance of the evidence.
11
Expedience in many, if not most, cases would likely prompt the State to concede
the motion to withdraw regardless of its merits because proving the probation violations
themselves typically would be faster and simpler than battling over the quality of the
probationer's legal representation. If motions to withdraw admissions were allowed, we
would expect in the long run to see probationers routinely filing them whenever district
courts revoked their probation. The savvy defendant would initially waive a hearing on
the alleged violations in hopes of getting his or her probation reinstated with a modest
sanction. Should that plan go awry, the defendant would then draft and file a vague
motion attacking the sufficiency of his or her legal representation simply as a coercive
device to get the revocation hearing he or she had previously relinquished. Those motions
commonly would be more procedural bludgeons than genuine error-correcting tools.
Constitutional due process rights should not function that way.
Here, Allen claimed in his motion that he did not understand the legal implications
of waiving a hearing on the probation violations and then admitting to them. We find that
to be improbable in this case and across the board. Probationers understand they are
supposed to comply with the terms and conditions of their probation and there will be
adverse consequences if they do not. And they ought to understand those consequences
could include having to serve their prison sentences.
When Allen appeared with his lawyer and waived his right to a hearing on the
alleged violations, the district court did outline the components of such a hearing,
including cross-examining the State's witnesses and presenting countering evidence, that
Allen gave up with his waiver. The district court, however, did not explicitly tell Allen it
would then determine an appropriate disposition considering the admitted violations and
those outcomes might range from continuing his probation with a short jail stay to
extending his probation or revoking his probation and sending him to prison to serve his
sentence. Such an explanation would have mitigated or obviated any purported deficiency
12
in the lawyer's discussion with Allen about the legal effect of waiving a hearing on the
violations.
But we doubt Allen was truly confused about the district court's latitude in
addressing the probation violations once they had been proved or admitted. When the
district court sentenced Allen, it admonished him, "[I]f you don't do the things you need
to do on probation[,] there's a very good chance you are going to get revoked and sent to
prison." Allen assured the district court he understood the predicament he faced on
probation. The exchange took place more than two years before the revocation
proceedings and, thus, lacked recency. But Allen had been exposed to the idea that a
probation violation, whether proved or admitted, could land him in prison. We expect
probationers generally grasp that commonsensical causal connection between probation
violations and imprisonment. In turn, we fail to see the constitutional necessity for
motions to withdraw admissions to probation violations to augment what is otherwise
obvious from the nature of probation as a conditional reprieve from serving a prison
sentence.
More particularly, Allen made a lengthy personal appeal to the district court at the
reconvened probation revocation hearing on disposition. He recounted what he saw as his
positive conduct demonstrating rehabilitation and a law-abiding character. On that basis,
Allen asked the district court to reinstate his probation. The request came on the heels of
the prosecutor's recommendation that Allen serve his underlying sentence and his own
lawyer's response that a range of sanctions short of imprisoning Allen for roughly 50
months would be more appropriate. The relevant point here lies not in the dueling
arguments about disposition but in Allen's obvious understanding that he faced going to
prison. In his remarks, he voiced neither surprise the prosecutor and his lawyer were
debating that proposition nor objection because his lawyer had led him to believe prison
was not a possibility.
13
Allen, of course, premised his motion to withdraw on inadequate legal
representation. So if motions to withdraw were constitutionally mandated, we suppose
probationers would have to establish that their lawyers' work fell below the standard for
adequate legal representation under the Sixth Amendment to the United States
Constitution. The Kansas Supreme Court has recognized that standard governs a criminal
defendant's postsentencing motion to withdraw a guilty or no contest plea. See State v.
Bricker, 292 Kan. 239, 245, 252 P.3d 118 (2011); State v. Louis, 59 Kan. App. 2d 14, 21,
476 P.3d 837 (2020). There is no principled reason why a more relaxed standard ought to
govern a motion to withdraw an admission to a probation violation.
Similarly, we suppose such motions might be required to set forth with
particularity the purported facts demonstrating inadequate legal representation or some
other compelling basis for relief, rendering a bare-bones submission such as Allen's
facially insufficient. Again, we draw on the Kansas Supreme Court's treatment of
motions to withdraw guilty or no contest pleas. The court has recognized that a district
court may deny a defendant's postsentencing motion to withdraw a plea without a hearing
when it fails to allege with particularity sufficient facts that, if proved, would warrant
relief. State v. Adams, 311 Kan. 569, 574, 465 P.3d 176 (2020); State v. Moses, 296 Kan.
1126, Syl. ¶ 1, 297 P.3d 1174 (2013); State v. Jackson, 255 Kan. 455, 459, 874 P.2d 1138
(1994). Probationers could not lay claim to more favorable treatment for motions to
withdraw their admissions to violations. The Jackson court analogized the procedural
requirements for a motion to withdraw a plea to those for a habeas corpus motion under
K.S.A. 60-1507. 255 Kan. at 459. The court has since affirmed that analogy. See State v.
Laughlin, 310 Kan. 119, 122-23, 444 P.3d 910 (2019).
With those observations, we circle back to what we see as an avenue for relief for
Allen and similarly situated probationers. Because probationers have both a case-specific
constitutional right and an absolute statutory right to legal representation in revocation
proceedings, they have a concomitant due process right to effective assistance from their
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lawyers. State v. Galaviz, 296 Kan. 168, 177, 291 P.3d 62 (2012) (probation revocation
proceedings); cf. Mundy v. State, 307 Kan. 280, 295, 408 P.3d 965 (2018) (statutory right
to counsel includes effective representation); Robertson v. State, 288 Kan. 217, 228, 201
P.3d 691 (2009) (same). Probationers who believe they have been aggrieved by
constitutionally deficient legal representation in probation proceedings may seek habeas
corpus relief under K.S.A. 60-1507.
To prevail on a 60-1507 motion, a probationer would have to show both
inadequate representation and prejudice consistent with Strickland v. Washington, 466
U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The grounds for relief
in a 60-1507 motion must be stated with particularity identifying the purported
deficiencies, the resulting prejudice, and supporting witnesses and other evidence. A
district court may summarily deny a 60-1507 motion (without appointing a lawyer or
holding a hearing) if the content of the motion and the record in the criminal case
demonstrate the movant is not entitled to relief. When a properly drafted motion supports
an ineffectiveness claim, the district court should appoint a lawyer and conduct a hearing.
Those procedural requirements curtail the burden otherwise meritless motions impose on
prosecutors and district courts. By requiring probationers to seek relief under K.S.A. 60-
1507, we head off the purely coercive impact of conclusory motions to withdraw
admissions of the type Allen filed. At the same time, however, K.S.A. 60-1507 affords a
means for truly aggrieved probationers to obtain relief because they have been ill served
by their lawyers. Habeas corpus proceedings provide the requisite level of constitutional
due process.
Allen was not entitled to relief on his motion to withdraw his admissions to the
alleged probation violations. The district court, therefore, committed no reversible error
in denying him relief.
Affirmed.
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***
ARNOLD-BURGER, C.J., concurring: Although I agree with the majority that this
case does not warrant reversal, I differ in the reason. I believe the district court was
correct, it lacked jurisdiction to hear Allen's motion to withdraw admission of probation
violations, filed14 days after the district court revoked his probation. And because it
lacked jurisdiction, so do we.
Allen's crime of conviction occurred in May 2014. In July 2015, following a plea
of guilty, the district court sentenced Allen to 52 months in prison for commercial sexual
exploitation of a child, a severity level 5 person felony. He was granted a dispositional
departure to probation for 36 months. Two years later, in August 2017, the court issued a
probation violation warrant for Allen's arrest alleging that he committed a new crime—
criminal possession of a firearm by a convicted felon; that he associated with persons
who were attempting to purchase cocaine; and that he was in possession of a 9mm
firearm—all in violation of his probation. On November 9, 2017, Allen—present with
retained counsel—admitted to the allegations in the motion. The district court judge
explained his rights. She advised him that he had the right to a hearing and that the State
would have to prove the allegations against him. She told him he would have the right to
call witnesses—including issuing subpoenas for witnesses to appear, if necessary, and he
could cross-examine witnesses called by the State. She also explained that he was under
no obligation to testify at the hearing. Allen said he understood those rights and wished to
wave them, and he wanted to admit to the allegations on the warrant. At the disposition
hearing, on December 1, 2017, Allen and his attorney presented letters to the court from
his mother and from his long-time girlfriend and Allen gave long and compelling remarks
on his own behalf.
16
I agree with the majority that Allen knew he could face 52 months in prison if the
court did not grant him some sort of intermediate sanction or reinstatement of probation.
During the disposition hearing he pleaded with the judge not to send him to prison, so he
knew that was an option. Ultimately, Allen's remarks did not sway the judge and, citing
the new crime, involving the possession of a weapon, the dispositional departure, and
public safety, ordered Allen remanded to custody for the balance of his term. Allen is not
claiming in this appeal that the judge abused her discretion in sending him to prison.
Two weeks later, Allen, through a new retained attorney, moved to withdraw his
admissions to the probation violations. In it, he specifically stated that he was not asking
for a modification of his sentence or reconsideration of the revocation order. And he did
not file an appeal of the revocation order. The district court dismissed his motion on
August 12, 2019, based upon lack of jurisdiction and Allen filed this notice of appeal on
August 12, 2019. So the issue of whether the violations alleged justify revocation of his
probation is not before this court.
Instead, Allen has rested his claim solely under the authority of K.S.A. 2019 Supp.
22-3210 and a claim that his attorney did not properly advise him of the consequences of
stipulating to the violations of probation. Applying this statute in this case would mean
that Allen could file this motion, the court could consider it, and he would have filed it
timely. See K.S.A. 2019 Supp. 22-3210(e)(1) (allowing a defendant one year to file a
motion to withdraw a plea). I agree with the majority that this statute does not apply to
Allen's situation and K.S.A. 2019 Supp. 22-3210 did not provide authority for the court
to allow Allen to withdraw his admissions made at his probation revocation hearing two
weeks earlier. His only avenue of relief was a timely appeal of the original revocation or
an action for ineffective assistance of counsel under K.S.A. 60-1507.
Although we agree on those points, the majority concludes that the district court
had jurisdiction to consider Allen's motion. This is where I disagree. Our Supreme Court,
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in State v. Miller, 260 Kan. 892, 902-04, 926 P.2d 652 (1996), abrogated on other
grounds by State v. Berreth, 294 Kan. 98, 273 P.3d 752 (2012), has plainly stated that
once the judge has committed the defendant to the Kansas Department of Corrections, the
district court has no jurisdiction to modify the sentence or reconsider its revocation order.
The district court remanded Allen to the custody of the Secretary of Corrections both
orally at the revocation hearing on December 1, 2017, and by journal entry filed on
December 15, 2017. Miller remains good law today. See State v. Jamerson, 309 Kan.
211, 220, 433 P.3d 698 (2019) (Johnson and Beier, JJ., concurring in part and dissenting
in part); State v. McGill, 271 Kan. 150, 154, 22 P.3d 597 (2001); State v. Terrell, No.
114,678, 2016 WL 3597711, at *1 (Kan. App. 2016) (unpublished opinion); State v.
Brunk, No. 101,889, 2010 WL 1379614, at *1-2 (Kan. App. 2010) (unpublished opinion).
The Kansas Court of Appeals is duty bound to follow Kansas Supreme Court precedent
unless there is some indication that the Kansas Supreme Court is departing from its
previous position. State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017). I can
find no such indication.
As a result, the only avenues for judicial review Allen had was a direct appeal of
the revocation or a motion under K.S.A. 60-1507 for relief based on ineffective assistance
of counsel. The district court lacked jurisdiction over his motion and therefore so do we.
See State v. Stough, 273 Kan. 113, 116, 41 P.3d 281 (2002) (finding if the district court
did not have jurisdiction, the appellate court does not acquire jurisdiction on appeal).
And tacking on a constitutional due process argument does not change the
jurisdiction issue. Of course, defendants may raise constitutional issues, but there must be
a procedural vehicle to do so. See State v. Trotter, 296 Kan. 898, 905, 295 P.3d 1039
(2013) (finding that although a litigant may raise subject matter jurisdiction at any time,
there must be a procedural vehicle for presenting the issue to the court). K.S.A. 2019
Supp. 22-3210 was not that vehicle. So although I have no dispute with the thorough
discussion of Allen's due process rights by the majority, I find it unnecessary given that
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this is not the procedural vehicle to consider those claims. This court has been advised by
the Supreme Court that once we determine the district court lacked jurisdiction, no
further discussion is warranted. In re Estate of Lentz, 312 Kan. ___, 2020 WL 7294514,
at *9 (Kan. 2020) ("When the Court of Appeals finds it lacks jurisdiction over a case, it
must dismiss the appeal . . . [and] the better practice is not to proceed to opine about the
merits of the issues.").
I would dismiss Allen's appeal for lack of jurisdiction.
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