NOT DESIGNATED FOR PUBLICATION
No. 123,016
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
SETH A. KERR,
Appellant.
MEMORANDUM OPINION
Appeal from Douglas District Court; AMY J. HANLEY, judge. Opinion filed March 12, 2021.
Reversed and remanded with directions.
Submitted by the parties for summary disposition pursuant to K.S.A. 2020 Supp. 21-6820(g) and
(h).
Before ARNOLD-BURGER, C.J., BRUNS and POWELL, JJ.
PER CURIAM: Seth A. Kerr appeals the district court's order revoking his
probation and imposing his underlying prison sentence. We granted Kerr's motion for
summary disposition under Supreme Court Rule 7.041A (2020 Kan. S. Ct. R. 47). Kerr
does not challenge the revocation of his probation, only the failure to impose intermediate
sanctions. Because the district court abused its discretion by bypassing intermediate
sanctions without first setting forth with particularity the reasons for finding that the
imposition of intermediate sanctions would jeopardize the safety of members of the
public and would not serve Kerr's welfare, we remand the case for a new hearing.
1
FACTUAL AND PROCEDURAL HISTORY
In April 2019, Kerr pled no contest to one count each of possession with intent to
distribute methamphetamine, a severity level 4 drug felony, and possession of drug
paraphernalia, a severity level 5 drug felony. See K.S.A. 2018 Supp. 21-5705(a)(1),
(d)(3)(A); K.S.A. 2018 Supp. 21-5709(b)(1). Because his criminal history score placed
him in a "border box" for sentencing purposes, he faced a presumptive prison sentence.
Yet at sentencing, the district court chose to impose a 26-month prison sentence but
released him on an 18-month probation term with another 24 months' postrelease
supervision.
Kerr later stipulated to violating his probation by failing to obey all laws, failing to
maintain full-time employment or student status, failing to keep his probation officer
informed of his current residence, failing to abstain from the use of illegal drugs, and
failing to pay financial obligations related to his case. Defense counsel asked the district
court to impose an intermediate sanction with a focus on more intensive inpatient
addiction treatment, emphasizing that this was Kerr's first probation violation.
Instead, the district court found continuing probation would not promote Kerr's
welfare and would threaten public safety, so it revoked Kerr's probation and imposed the
underlying sentence. Kerr now appeals.
ANALYSIS
Appellate courts review a district court's decision whether to revoke probation for
an abuse of discretion. State v. McFeeters, 52 Kan. App. 2d 45, 47, 362 P.3d 603 (2015).
A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or
unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. State
2
v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018). Kerr bears the burden of showing
an abuse of discretion. State v. Ballou, 310 Kan. 591, 615, 448 P.3d 479 (2019).
Kerr does not challenge the alleged probation violations in this appeal. Instead, he
asserts that revocation without imposing intermediate sanctions was unreasonable given
his need for more intensive treatment. But beyond stating the court abused its discretion,
Kerr does not point to any errors of fact or law in the district court's decision. So that
leaves us with deciding whether the court's decision was arbitrary, fanciful, or
unreasonable. We find it was.
A district court's discretion in revoking probation is limited by the intermediate
sanction provisions outlined in K.S.A. 2018 Supp. 22-3716. When Kerr admitted to
violating the conditions of his probation, a district court could revoke probation without
having previously imposed a sanction, but only subject to certain exceptions. The district
court relied on one exception to deny Kerr the opportunity to have intermediate sanctions
accessed in his case rather than incarceration for the balance of his term—the public
safety and offender welfare exception. See K.S.A. 2018 Supp. 22-3716(c)(9)(A).
Kerr recognizes that under K.S.A. 2018 Supp. 22-3716(c)(9)(A), the district court
may revoke probation without previously imposing intermediate sanctions if it "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." At the violation hearing, the court emphasized that Kerr received a "border
box" disposition because of the availability of a treatment program that would benefit
him, yet Kerr failed to take advantage of that privilege. The court also found that his
admissions about continued abuse of illegal drugs—including failed drug tests on six
consecutive occasions—as well as the other admitted violations reflected a refusal or
inability to comply with the terms of his probation.
3
But a court does not sufficiently particularize its findings if they are based upon
broad generalizations about public safety and offender welfare that could easily apply to
all similar cases. See State v. Duran, 56 Kan. App. 2d 1268, 1276, 445 P.3d 761 (2019).
As this court found in Duran, findings that are the equivalent of stating that "a defendant
has repeatedly failed to complete treatment and therefore will likely continue to do so" or
"'you messed up, you will probably keep messing up, so you are not amenable to
probation'" are the type of generalized findings that could apply to any probation
revocation case. 56 Kan. App. 2d at 1275-76. We find that the district court's findings
here, like those in Duran, are much like those that our Supreme Court has repeatedly
rejected. See State v. Clapp, 308 Kan. 976, 988-91, 425 P.3d 605 (2018) (rejected district
court's finding, after reciting Clapp's criminal history, that Clapp did not value how
probation could help him change his life); State v. Dooley, 308 Kan. 641, 653-54, 423
P.3d 469 (2018) (finding that the judge's statement that "'[t]his is a serious violation and
you've been on probation before, you knew what was required of you, you were given
several chances'" was insufficient to bypass sanctions based on public safety and offender
welfare). Accordingly, we find that the district court abused its discretion in bypassing
intermediate sanctions based on the public safety and offender welfare exception, and we
must remand the case for a new hearing.
We do note that Kerr also stipulated to violating his probation because of arrests
for misdemeanor theft and traffic violations in August 2019. Kerr recognizes that under
K.S.A. 2018 Supp. 22-3716(c)(8)(A), the district court may revoke probation without
previously imposing intermediate sanctions "[i]f the offender commits a new felony or
misdemeanor while the offender is on probation." But we cannot rely on this statutory
provision to affirm the district court's decision when the district court did not invoke it.
"In other words, we cannot affirm the district court for a discretionary decision it did not
make." Duran, 56 Kan. App. 2d at 1277. The district court is free to take up this
provision on remand.
4
Reversed and remanded with directions.
***
Powell, J., concurring: I concur in the result.
5