NOT DESIGNATED FOR PUBLICATION
Nos. 123,979
123,980
123,981
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
WILLIAM RITZ,
Appellant.
MEMORANDUM OPINION
Appeal from Harvey District Court; JOHN B. KLENDA, judge. Opinion filed September 2, 2022.
Reversed and remanded with directions.
Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.
Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., ISHERWOOD and COBLE, JJ.
PER CURIAM: William Ritz appeals the trial court's decision to revoke his
probation. In a previous appeal, this court remanded after holding that the trial court
incorrectly skipped over intermediate sanctions based on a dispositional departure. On
remand, the trial court again revoked Ritz' probation, citing concerns about public safety
and Ritz' welfare. Ritz argues that the trial court again erred in revoking his probation
because the trial court's findings were vague, inarticulate, and based on supposition. We
conclude that the trial court failed to set forth with particularity its reasons for invoking
the exceptions under K.S.A. 2016 Supp. 22-3716(c)(9) before ordering Ritz to serve his
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prison sentence. We reverse the trial court's revocation decision and remand with
directions to conduct a new dispositional hearing.
FACTS
This case is Ritz' second appeal of a probation revocation. This court has already
laid out the underlying facts in State v. Ritz, No. 122,071, 2021 WL 302413 (Kan. App.
2021) (unpublished opinion).
"After reaching an agreement with the State, Ritz pled guilty in three Harvey
County cases. In 17CR84, Ritz pled guilty to distribution or possession with intent to
distribute methamphetamine within 1,000 feet of a school and use of a communication
facility for a drug transaction. Then, in both 17CR85 and 17CR86, Ritz pled guilty to
distribution or possession with intent to distribute methamphetamine within 1,000 feet of
a school and use of a communication facility for a drug transaction, a severity level eight
nonperson felony. All of these crimes were committed in January 2017.
"In their plea agreement, the State agreed not to file charges in another case, and
not to oppose Ritz' motion for a dispositional departure to probation in each case. Indeed,
Ritz was subject to a presumptive prison sentence in each case. But the district court
granted him a dispositional departure to 36 months' probation in all three cases. He
received prison terms of 119 months in 17CR84 and 67 months in 17CR85 and 17CR86."
2021 WL 302413, at *1.
At a probation revocation hearing, Ritz did not contest the State's allegations that
he tested positive for methamphetamine use, failed to attend appointments, and lied about
his employment. The trial court revoked Ritz' probation, explaining that it had granted a
dispositional departure. K.S.A. 2017 Supp. 22-3716(c)(9)(B) allowed trial courts to
revoke probation without intermediate sanctions if probation was originally granted as a
dispositional departure. On appeal, this court held that the trial court could not bypass
intermediate sanctions and revoke probation based on a dispositional departure. This
court held that the trial court erred in relying on K.S.A. 2017 Supp. 22-3716(c)(9)(B).
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This change to the intermediate sanction scheme came into effect after Ritz committed
his crimes of conviction, so the trial court erred in relying on a dispositional departure as
a basis to revoke probation. 2021 WL 302413, at *2. This court remanded for a new
probation violation hearing.
On remand, the trial court again revoked Ritz' probation. The court then ordered
Ritz to serve a 253-month prison sentence.
Ritz timely appeals.
ANALYSIS
Did the trial court make the required particularized findings necessary to revoke Ritz'
probation?
Ritz argues that the trial court's decision on remand should be reversed because its
findings were insufficient to meet the particularity requirement of K.S.A. 2016 Supp. 22-
3716(c)(9). The State asserts that the trial court made sufficient findings to justify
revocation. Because the trial court relied on broad-brush generalizations, we reverse and
remand with directions.
While the State must prove a violation by a preponderance of the evidence, once
established, the court may revoke probation in its discretion. State v. Gumfory, 281 Kan.
1168, Syl. ¶ 1, 135 P.3d 1191 (2006); see State v. Lloyd, 52 Kan. App. 2d 780, 782, 375
P.3d 1013 (2016). But see K.S.A. 2016 Supp. 22-3716 (requiring graduated sanctions
before revocation in certain circumstances).
Once a probation violation and an exception to the intermediate sanctions'
requirement are established, the trial court has discretion in determining whether to
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continue the probation or to revoke and require the defendant to serve the underlying
prison sentence. See State v. Brown, 51 Kan. App. 2d 876, 879-80, 357 P.3d 296 (2015).
A trial court's decision to revoke the defendant's probation and order the defendant
to serve the underlying sentence must be exercised within the statutory framework of
K.S.A. 2016 Supp. 22-3716 in this case. A trial court abuses its discretion when it steps
outside the framework or fails to properly consider statutory standards. See State v.
Grossman, 45 Kan. App. 2d 420, 427, 248 P.3d 776 (2011).
Our standard of review is the following: "Where the issue is the propriety of the
sanction imposed by the trial court for a probationer's violation of the terms and
conditions of probation, the standard of review is an abuse of discretion. [Citation
omitted.]" State v. Coleman, 311 Kan. 332, 334, 460 P.3d 828 (2020).
Before July 1, 2013, a trial court had broad discretion to impose a variety of
sanctions once it determined a defendant violated the terms of probation. But effective
July 1, 2013, the Legislature substantially amended K.S.A. 22-3716 and eliminated much
of that discretion. See State v. Clapp, 308 Kan. 976, 981-82, 425 P.3d 605 (2018). From
its enactment in 2013, the first sanction available to a trial court after a probationer
violated the terms of probation—other than modifying conditions of probation—was a
two- or three-day jail sanction. See K.S.A. 2016 Supp. 22-3716(c)(1)(B). After at least
one jail sanction was imposed and another probation violation occurred, the trial court
could impose a sanction of 120 or 180 days in prison. K.S.A. 2016 Supp. 22-
3716(c)(1)(C)-(D). And unless certain bypass exceptions applied, only after a trial court
imposed a 120- or 180-day prison sanction and a probationer committed another violation
could the trial court order the probationer to serve the underlying prison sentence. K.S.A.
2016 Supp. 22-3716(c)(1)(E). But effective July 1, 2019, the Legislature removed the
120-day and 180-day prison sanctions from the intermediate sanctioning scheme. See
K.S.A. 2019 Supp. 22-3716(c). Thus, under the 2019 amendment, the trial court may now
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revoke an offender's probation after the offender has received at least one two- or three-
day jail sanction. See K.S.A. 2019 Supp. 22-3716(c)(1)(C).
If a trial court relies on K.S.A. 2016 Supp. 22-3716(c)(9) to bypass intermediate
sanctions, it must make findings that the safety of the public will be jeopardized, or the
welfare of the offender will not be served by imposing sanctions. These findings must be
"'distinct rather than general, with exactitude of detail, especially in description or stated
with attention to or concern with details.'" State v. Dooley, 308 Kan. 641, 652, 423 P.3d
469 (2018).
Because K.S.A. 2016 Supp. 22-3716(c)(9) requires the court to set forth with
particularity the reason for finding this exception applies, "'an implicit determination is
not enough.'" 308 Kan. at 652. To rely on this exception, the trial court must explain how
the safety of the members of the public will be jeopardized if the offender remains on
probation or how the offender's welfare will not be served by imposition of an
intermediate sanction. State v. McFeeters, 52 Kan. App. 2d 45, 49, 362 P.3d 603 (2015);
see Clapp, 308 Kan. at 990-91; State v. Duran, 56 Kan. App. 2d 1268, 1276, 445 P.3d
761 (2019) ("Broad generalizations that equally could apply to all similar cases are not
sufficiently particularized" to meet the requirements of K.S.A. 2018 Supp. 22-
3716[c][9]).
In Duran, this court held that the trial court's findings were insufficiently
particular to satisfy the public safety and offender welfare exception to the intermediate
sentencing scheme. This court agreed with Duran's argument that findings based on the
likelihood that a person addicted to drugs is going to relapse are not appropriate findings
because they are so common and generalized that they would allow trial courts to bypass
intermediate sanctions in every case. The exception in subsection (c)(9) would swallow
the rule of the graduated sanctions system. 56 Kan. App. 2d at 1276.
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Ritz and the State both quote the findings that the trial court made in this case:
"Well, Mr. Ritz, the Court is very concerned. Looking back on the motion to
revoke probation, first of all, and this is a public safety issue here. You are convicted on
three separate cases of distribution of methamphetamine within 1,000 feet of a school,
and that's very concerning obviously.
"I do note that the—your probation officer imposed three three-day jail sanctions,
and that evidently didn't work. You continued to violate probation.
"The unsanctioned violations, you continued to use meth or tested positive for
methamphetamine on numerous occasions. I note that you were dishonest with your
probation officer. You indicated that you were evidently going to be working at Agco or
had some association with Agco and they indicated they had no record of you ever being
an employee.
"You also failed to continue your treatment program with Mirror, and you also
failed to show on appointment with your probation officer.
"So, based upon that, the Court does find that your probation should be revoked.
"The Court—you are definitely a safety issue to the general public because
evidently you have continued to use methamphetamine in spite of the fact that the Court
had granted you a dispositional departure, and I'm not even considering that as a reason
to revoke your probation, but you did commit very serious offenses by distributing
methamphetamine within 1,000 feet of a school.
"And it also appears that you—your welfare just cannot be served by having any
continued sanctions based upon your admissions or plea of no contest to your violations
as set out, as I reviewed, with your motion to revoke probation.
"So the Court is going to remand you back to the Department of Corrections to
serve your underlying sentence less credit for time served."
Just as in Duran, the trial court's language here referenced continued drug use as a
reason for imposing the original sentence instead of an intermediate sanction. But the trial
court fails to make explicit findings on how Ritz' admitted probation violations would
mean that imposing a more severe sanction, rather than revocation, would threaten Ritz'
welfare or create a public safety issue. See McFeeters, 52 Kan. App. 2d at 49.
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As an example, the trial court provided us with no explicit findings on public
safety at all. The only public safety concern expressed by the trial court was Ritz'
underlying crimes of illegally distributing methamphetamine, which is not a valid basis
for revoking probation. State v. Shanholts, No. 118,911, 2019 WL 1303165, at *4 (Kan.
App. 2019) (unpublished opinion) (citing Clapp, 308 Kan. at 988-91) (holding that a trial
court does not meet the particularity requirements by summarizing the defendant's
criminal history, listing violations, and not successfully participating in court-ordered
programs).
Also, the trial judge seemed conscious of the fact that Ritz' continued use of
methamphetamine is not a public safety issue and is not a basis for skipping sanctions
when he said, "I'm not even considering that as a reason to revoke your probation."
Nevertheless, immediately after making this statement, the trial judge concluded his
sentence by referring to the offenses that Ritz had previously committed: "[B]ut you did
commit very serious offenses by distributing methamphetamine within 1,000 feet of a
school." And the trial court stated no other public safety concerns. Thus, if we were to
uphold the trial court's public safety determination, it would require us to allow what the
McFeeters court prohibited—a trial court does not meet the particularity requirements by
simply discussing a defendant's unwillingness or inability to conform his or her behavior
to the requirements of probation. McFeeters, 52 Kan. App. 2d at 49.
The trial court's conclusion about Ritz' welfare could not be served by imposing
any continued sanctions—based upon his admissions of probation violations—runs
counter to reason. Indeed, it seems that the Kansas Legislature adopted the intermediate
sanctioning scheme to slow down the increasing prison population. Nevertheless, the trial
court stated that a 120-day or 180-day sanction would be fruitless because Ritz had
violated his probation, but it did not describe how or why such sanctions could not
influence Ritz' welfare. We note that the trial court maintained that the three-day jail
sanctions imposed by the probation officer did not work. This leaves us with a
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conundrum. It boils down to this question: Why would probationers faced with a 21-year
prison sentence not carefully weigh their options between serving a 120-day or a 180-day
intermediate sanction and then follow their conditions of probation against serving a 21-
year prison sentence for failing to follow their conditions of probation after serving a
120-day or a 180-day intermediate sanction? The trial court's reasoning here is so brief
and incomplete that it affords no sound basis for us to conclude that a longer intermediate
sanction would have had no effect on Ritz' behavior after serving a 120-day or a 180-day
intermediate sanction.
In conclusion, the trial court here made no particular or detailed findings
explaining how or why Ritz' criminal history or his relapses on probation would have
posed any public safety concerns or threatened Ritz' welfare if the trial court had imposed
a longer intermediate sanction. As a result, the trial court's findings are unsupported
factually and legally. Indeed, the trial court's broad-brush generalizations that were made
here have been previously rejected in our Duran holding. Thus, we conclude that the trial
court abused its discretion when it revoked Ritz' probation because it failed to meet the
particularity requirement under K.S.A. 2016 Supp. 22-3716(c)(9).
For the preceding reasons, we reverse the trial court's decision to revoke Ritz'
probation and remand for a new dispositional hearing consistent with K.S.A. 2016 Supp.
22-3716.
Reversed and remanded with directions.
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