State v. Wilson

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 121,729

STATE OF KANSAS,
Appellee,

v.

MARCUS L. WILSON,
Appellant.

SYLLABUS BY THE COURT

1.
A condition precedent to the district court's statutory authority to revoke probation
and impose the sentence on a probation violator under K.S.A. 2016 Supp. 22-
3716(c)(1)(E) is that the violator already had a sanction imposed under K.S.A. 2016
Supp. 22-3716(c)(1)(C) (providing for 120-day sanction in custody of Secretary of
Corrections) or K.S.A. 2016 Supp. 22-3716(c)(1)(D) (providing for the 180-day sanction
in custody of Secretary of Corrections). A judge can impose those precedent sanctions
only after the violator already had at least one two- or three-day jail sanction imposed
under K.S.A. 2016 Supp. 22-3716(b)(4)(A), K.S.A. 2016 Supp. 22-3716(b)(4)(B), or
K.S.A. 2016 Supp. 22-3716(c)(1)(B). Thus, a condition precedent to the district court's
statutory authority to revoke probation and remand a probation violator to serve a prison
sentence under K.S.A. 2016 Supp. 22-3716(c)(1)(E) is that the violator first serves a jail
sanction and then an intermediate sanction in the custody of the Secretary of Corrections.

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2.
When an appellate court holds that a district court abused its discretion by not
following the procedure set out in K.S.A. 2016 Supp. 22-3716, the correct disposition is
to reverse the decision and remand the case to the district court with directions to ensure
the statute is properly applied.

Review of the judgment of the Court of Appeals in an unpublished opinion filed August 28, 2020.
Appeal from Sedgwick District Court; ERIC N. WILLIAMS, judge. Opinion filed January 7, 2022.
Judgment of the Court of Appeals affirming the district court is reversed on the single issue addressed.
Judgment of the district court is reversed, and the case is remanded with directions.

James M. Latta, of Kansas Appellant Defender Office, argued the cause and was on the briefs for
appellant.

Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, C.J.: When a criminal defendant sentenced to probation violates the
terms of probation, the law allows a district court judge to sanction the defendant for the
misconduct. But the Legislature, through K.S.A. 2016 Supp. 22-3716, restricted the
sanctions a judge can use. That statute requires judges to impose specified intermediate
sanctions before revoking probation and remanding the defendant to the custody of the
Secretary of Corrections to serve a term of imprisonment. Under certain specified
circumstances, the Legislature allows for an exception under which a judge may bypass
the graduated sanctions. See K.S.A. 2016 Supp. 22-3716.

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 The provisions of K.S.A. 2016 Supp. 22-3716 dictate the outcome of this appeal,
which arises after Marcus L. Wilson committed multiple probation violations. Wilson
received sanctions on two prior occasions—a 180-day jail sanction for the first violation
and a two-day jail sanction for the second. After a third violation, a judge revoked
Wilson's probation, requiring him to serve a prison sentence. In doing so, the judge did
not mention the bypass exception.

Wilson appeals, arguing the judge improperly revoked his probation because the
district court had not imposed the graduated sanctions in ascending order of severity as
required by the Legislature. We agree.

At oral argument before us, both parties suggested this appeal comes down to
whether the harmless error analysis applies to the district court's failure to follow the
statutory graduated sanctions set out in K.S.A. 2016 Supp. 22-3716. We conclude a
harmless error analysis does not apply. We therefore remand to the district court for
reconsideration of the proper sanction for Wilson's probation violations.

FACTS AND PROCEDURAL BACKGROUND

Wilson pleaded guilty to aggravated burglary and two counts of criminal threat
based on a plea agreement. The events supporting the charges occurred on August 25,
2016, a date that directs us to apply the version of K.S.A. 22-3716 found in the 2016
statutory supplement. See State v. Coleman, 311 Kan. 332, 337, 460 P.3d 828 (2020)

A district court judge sentenced Wilson to a controlling term of 75 months'
imprisonment. The judge granted a dispositional departure to probation for 36 months.
Wilson's probation conditions included requirements that he remain law abiding, submit
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to random drug tests, follow his probation officer's directives, and complete an anger
management program.

About four months later, Wilson returned to court because he had allegedly
violated the terms of his probation by breaking the law, using drugs, and using alcohol.
The judge considering the status of Wilson's probation accepted evidence that Wilson had
pleaded guilty or no contest to domestic battery and on that basis found a probation
violation. Wilson stipulated to the other probation violations of using drugs and using
alcohol.

The State requested imposition of a 180-day Kansas Department of Corrections
(KDOC) sanction and an order returning Wilson to a full 36 months' probation on his
release from KDOC. Wilson joined the request. The judge adopted the joint
recommendation. In addition, the judge, who planned to retire during Wilson's KDOC
sanction, cautioned,

"I am going to make a notation that I put you on notice of the fact that any additional
probation violations, it is zero-tolerance and no exceptions. What that means very simply
is any commitment of another violation, you are looking at a 59-month sentence in 16 CR
2522 to serve minus whatever good-time credit you get on the case and any jail credit you
get."

Shortly after his release from the 180-day KDOC sanction, Wilson stipulated to
another probation violation. He agreed to serve a 48-hour jail sanction.

A few months later, the district court held an evidentiary hearing on two new
alleged probation violations. The district court found by a preponderance of the evidence

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that Wilson violated his probation conditions by testing positive for THC and not
attending drug and alcohol treatment as directed. The district court judge presiding over
that hearing noted the prior judge's warning that there would be zero tolerance of future
violations before revoking and imposing the original sentence of 75 months followed by
36 months' post-release supervision. The district court judge modified the sentence in
another case to run concurrent with the charges in this case and remanded Wilson to the
custody of KDOC to serve both sentences.

Wilson appealed, raising three issues. The Court of Appeals affirmed. State v.
Wilson, No. 121,729, 2020 WL 5083545 (Kan. App. 2020) (unpublished opinion).
Wilson timely petitioned asking for this court's review of his appeal. He raised only one
issue for review, arguing the Court of Appeals erred by holding that a district court judge
may use the probation violation sanctions in K.S.A. 2016 Supp. 22-3716(c)(1) in any
order, rather than in graduating steps of severity, and still properly revoke probation. We
granted Wilson's petition for review and have jurisdiction under K.S.A. 20-3018(b)
(allowing petitions for review of Court of Appeals decisions) and K.S.A. 60-2101(b)
(Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for
review).

ANALYSIS

1. The district court erred in applying K.S.A. 2016 Supp. 22-3716.

K.S.A. 2016 Supp. 22-2716 defines the intermediate sanctions a judge may
impose before revoking probation and requiring the defendant to serve a prison sentence.
It also requires a judge to use these sanctions or to invoke a so-called bypass provision
that, if applied, allows bypassing the intermediate sanctions and sending someone

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directly to the custody of KDOC. Here, the judge did not invoke the bypass, and the State
does not contend it applies. Nor did the court impose the intermediate sanctions in a
graduated order from least severe to more severe. Wilson argues the judge thus abused
his discretion by not following the statute.

Before discussing the heart of that issue, we pause to make some preliminary
points. First, as we noted, because Wilson committed the underlying crimes in August
2016, the applicable statute is K.S.A. 2016 Supp. 22-3716. After 2016, the Legislature
amended K.S.A. 22-3716, but those amendments do not apply here. See Coleman, 311
Kan. at 337. Second, before the Court of Appeals, the parties disputed whether Wilson
had preserved the issue we now review. The Court of Appeals held he had. Wilson, 2020
WL 5083545, at *3. The State has not asked us to review that holding. So we too
consider the issue preserved. See Supreme Court Rule 8.03(c)(3) (2021 Kan. S. Ct. R. 57)
("The purpose of a cross-petition is to seek review of specific holdings the Court of
Appeals decided adversely to the cross-petitioner.").

With those considerations in mind, we turn to the issue raised by Wilson of
whether the district court judge abused his discretion by incorrectly interpreting and
applying K.S.A. 2016 Supp. 22-3716, leading to a premature revocation of Wilson's
probation. See Coleman, 311 Kan. at 334 (appellate courts review propriety of probation
sanction for abuse of discretion). One way in which a judge may abuse discretion is by
committing an error of law, such as in interpreting a statute. See State v. Gonzalez-
Sandoval, 309 Kan. 113, 126-27, 431 P.3d 850 (2018) (district court abuses discretion
when making an error of law); State v. Clapp, 308 Kan. 976, 980, 425 P.3d 605 (2018)
(interpretation of statute presents a question of law).

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 As we noted, before us the State focused on whether any error was harmless. But
the Court of Appeals held no error occurred, necessitating that we examine Wilson's
claim of error. To do so, we focus on the language of K.S.A. 2016 Supp. 22-3716, which
sets out how courts should apply the intermediate sanctions allowed by the Legislature. In
interpreting a statute, courts apply the statute as written if its meaning is clear and
unambiguous. If it is not clear, we look to legislative history, background considerations,
and canons of construction to help discern legislative intent. See State v. Queen, 313 Kan.
12, 17, 482 P.3d 1117 (2021). As we review the district court judge's and the Court of
Appeals' interpretation of K.S.A. 2016 Supp. 22-2716, we grant no deference to their
interpretation but interpret the statute de novo. Clapp, 308 Kan. at 980.

K.S.A. 2016 Supp. 22-2716 sets out three intermediate sanctions: (1) two or three
days in jail; (2) 120 days in KDOC custody; and (3) 180 days in KDOC custody. The
defendant, after serving either a jail or a KDOC sanction, returns to probation. Wilson
argues the legislative intent was to have the two- or three-day sanction imposed for the
first violation and the KDOC sanction imposed for later violations. He also contends that
a judge can revoke probation only after the defendant has "properly climb[ed] the ladder
of the graduated sanctioning scheme." But the judges here moved down the ladder when
imposing sanctions, first ordering the most severe of the intermediate sanctions—180
days in KDOC's custody—followed by two days in jail. Because of this backward order
of sanctions, Wilson argues the Court of Appeals erred in holding "that Wilson received
the appropriate intermediate sanctions before the district court revoked his probation on
his third violation [and, thus,] the district court did not err in revoking Wilson's probation
on his third violation." Wilson, 2020 WL 5083545, at *4. We agree with Wilson's
argument.

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 The plain language of K.S.A. 2016 Supp. 22-3716(c)(1)(E) reveals a legislative
intent that the judge must impose a two- or three-day jail sanction before the judge can
impose a 120- or 180-day sanction. And a judge may revoke probation only after
properly imposing a 120- or a 180-day sanction. To get to this conclusion we work
through three parts of K.S.A. 2016 Supp. 22-3716:

1. K.S.A. 2016 Supp. 22-3716(c)(1)(E) allows a judge to remand a probationer to
prison for the full term of the sentence "if the violator already had a sanction
imposed pursuant to subsection (c)(1)(C) or (c)(1)(D)." (Emphasis added.)

2. A judge can order a sanction under subsection (c)(1)(C) (providing for the 120-
day KDOC sanction) or (c)(1)(D) (providing for the 180-day KDOC sanction)
only "if the violator already had at least one intermediate sanction imposed
pursuant to subsection (b)(4)(A), (b)(4)(B) or (c)(1)(B)." (Emphasis added.)

3. And (b)(4)(A), (b)(4)(B), or (c)(1)(B) are provisions that allow for a two- or
three-day jail sanction under various circumstances.

These provisions set out the progression of sanctions that must occur before a
judge revokes probation. At least one two- or three-day jail sanction is a condition
precedent for imposing a 120- or 180-day KDOC sanction. And if the judge does not
impose the two- or three-day sanction before the 120- or 180-day sanction, then the 120-
or 180-day sanction was not "imposed pursuant to subsection (c)(1)(C) or (c)(1)(D)."

We reached the same conclusion in Clapp, 308 Kan. 976. There we summarized
the graduated sanctions provisions as they existed in 2014:

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 "[A]bsent utilization of a statutory bypass provision, a condition precedent to the district
court's statutory authority to revoke probation and impose the underlying sentence on a
probation violator under K.S.A. 2014 Supp. 22-3716(c)(1)(E) is that the violator already
had a sanction imposed pursuant to K.S.A. 2014 Supp. 22-3716(c)(1)(C) or K.S.A. 2014
Supp. 22-3716(c)(1)(D), which precedent sanctions could only have been imposed after
the violator already had a jail sanction imposed pursuant to K.S.A. 2014 Supp. 22-
3716(b)(4)(A), K.S.A. 2014 Supp. 22-3716(b)(4)(B), or K.S.A. 2014 Supp. 22-
3716(c)(1)(B). Therefore, a condition precedent to the district court's statutory authority
to revoke probation and impose the underlying sentence on a probation violator under
K.S.A. 2014 Supp. 22-3716(c)(1)(E) is that the violator already had a jail sanction
imposed pursuant to K.S.A. 2014 Supp. 22-3716(b)(4)(A), K.S.A. 2014 Supp. 22-
3716(b)(4)(B), or K.S.A. 2014 Supp. 22-3716(c)(1)(B)." 308 Kan. at 986-87.

In other words, a district court may impose a 120- or 180-day KDOC sanction
only if the violator has already served at least one jail sanction. And the district court may
revoke probation only if the violator has served at least one jail sanction followed by at
least one 120- or 180-day KDOC sanction unless the district court uses a bypass
provision. The Legislature amended K.S.A. 22-3716 in 2016, but those amendments
changed none of the subsections applicable to Wilson's case. See L. 2016, ch. 97, § 3.

Here, as in Clapp, the district court revoked probation without following the
graduated sanction provisions. There, we concluded the district court lacked authority to
revoke Phillip L. Clapp's probation unless the district court used a statutory bypass
provision. And we concluded the district court did not rely on the bypass provision.
308 Kan. at 988-91. We thus remanded for a new dispositional hearing that properly
applied K.S.A. 2014 Supp. 22-3716, at which the district court could impose a proper
graduated sanction or bypass the graduated sanctions if it made the required findings. 308
Kan. at 991.

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 Consistent with our holding in Clapp, we conclude the fact that Wilson has served
two sanctions does not cure the district court's lack of statutory authority to impose the
first sanction it ordered (the KDOC sanction) because Wilson had not served a two- or
three-day jail sanction. K.S.A. 2016 Supp. 22-3716(c)(1). Although Wilson has no
remedy for that sanction because he did not appeal it at the time, the improper sanction
still affects this case because the district court ordered the revocation of probation
without statutory authority. Cf. Clapp, 308 Kan. at 987 (error not attacked on direct
appeal "did not imbue the district court with the discretion to compound the error" at a
later revocation hearing). Here, because the district court did not impose the 2-day jail
sanction before the 180-day KDOC sanction, it did not impose the 180-day KDOC
sanction under subsection (c)(1)(C) or (c)(1)(D). This means Wilson has served only one
statutorily prescribed sanction: the two-day sanction imposed for the curfew violation
under K.S.A. 2016 Supp. 22-2716(b)(4). And that sanction, standing alone, will not
support revocation on a later probation violation under the graduated sanction provisions
applicable here.

The Court of Appeals' conclusion that the district court did not err in revoking
probation after a third probation violation ignores the district court's lack of statutory
authority to impose the 180-day KDOC sanction for the first violation. Granted, as the
Court of Appeals noted, the plain language of the statute does not tie revocation to the
number of probation sanctions. It does, however, tie revocation to a sanction imposed
under one of two statutory subsections—(c)(1)(C) or (c)(1)(D). See K.S.A. 2016 Supp.
22-3716(c)(1)(E). And the district court's 180-day KDOC sanction does not meet the
statutory prerequisites to a sanction under (c)(1)(C) or (c)(1)(D). As in Clapp, we will not
"imbue the district court with the discretion to compound the error" by overlooking the
lack of statutory support for the 180-day sanction it imposed. We cannot ignore the
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legislative direction that the process requires walking through the steps of the graduated
sanctions or properly analyzing whether it is proper to bypass them. See Clapp, 308 Kan.
at 987.

In sum, the district court made an error of law when revoking Wilson's probation.
And, while several conditions precedent to invoking the bypass provisions in K.S.A.
2016 Supp. 22-3716(c)(8) or (c)(9) may apply, the judge did not refer to or make
findings under these provisions. Nor does the State rely on them on appeal. The judge
thus abused his discretion in revoking probation.

2. The error was not harmless.

The Court of Appeals, without the benefit of briefing or argument from the parties,
ruled in the alternative that "any error in applying the sanctions out of order was
harmless." Wilson, 2020 WL 5083545, at *4 (citing K.S.A. 2019 Supp. 60-261). We
disagree.

In State v. Herring, 312 Kan. 192, 474 P.3d 285 (2020), we recently considered
whether a district court's error in applying the wrong legal standard could be harmless.
Christopher Herring moved to withdraw his guilty plea to aggravated robbery. The
district court applied the wrong legal standard and thus committed an abuse of discretion
when ruling on Herring's motion. We then discussed whether this error could be
harmless. In doing so, we noted that we had consistently reversed and remanded appeals
when a district court had not applied the proper legal standard. See Herring, 312 Kan. at
199-200. We concluded that while "[a] reviewing court may think it understands how a
district court should view these circumstances, . . . it cannot know for sure until the lower
court does the analysis." 312 Kan. at 201.
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 Here, the State attempts to distinguish Herring by arguing that case involved a
legal standard while this case involves a legal procedure. The State does not persuade us
that distinction makes a difference. Both Herring and this case involve statutes that
require a district court judge to perform a different legal analysis depending on the
procedural posture of the case, and the key in both is that we cannot know how the judge
would apply the facts in performing the analysis.

A remand also tracks our recent probation revocation decisions in Coleman,
311 Kan. 332, and Clapp, 308 Kan. 976. In each case, we remanded to the district court
for application of the proper law. In Coleman, we remanded to the district court "for a
new probation violation hearing with directions to apply the law in effect when Coleman
committed his offenses or crimes of convictions." Coleman, 311 Kan. at 337. And in
Clapp, we remanded "for a new dispositional hearing to comply with K.S.A. 2014 Supp.
22-3716." Clapp, 308 Kan. at 991. At that hearing, the district court could "either impose
an appropriate graduated sanction under K.S.A. 2014 Supp. 22-3716(c)(1)(A)-(D) or, in
the alternative, may set forth with particularity its reasons for bypassing intermediate
sanction[s] under K.S.A. 2014 Supp. 22-3716(c)(9), prior to ordering Clapp to serve his
underlying sentence." Clapp, 308 Kan. at 991.

Likewise, here, we conclude harmless error cannot save the probation revocation.
The district court judge must apply the proper legal standard.

We thus reverse the Court of Appeals holding on the single issue before us. We
also reverse the district court and remand this appeal for reconsideration of the sanction
for Wilson's probation violations. As in Clapp, the district court can either impose a

12
proper graduated sanction or set forth its reasons for bypassing the intermediate
sanctions.

Judgment of the Court of Appeals affirming the district court is reversed on the
single issue before us. Judgment of the district court is reversed, and the case is remanded
with directions.

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