              IN THE SUPREME COURT OF THE STATE OF KANSAS

                                        No. 108,735

                                    STATE OF KANSAS,
                                        Appellee,

                                             v.

                                    GREYSON HURLEY,
                                       Appellant.


                              SYLLABUS BY THE COURT

1.
       When reviewing whether a district court complied with due process requirements
in revoking a defendant's probation, an appellate court employs an unlimited standard of
review.


2.
       Although a district court's initial decision to impose probation is an act of grace,
subject to judicial discretion, once the privilege of probation has been bestowed upon a
defendant, he or she acquires a conditional liberty interest which is subject to substantive
and procedural due process limits on its revocation. For instance, a probationer may not
have his or her probation revoked unless it is made to appear that the probationer has
failed to comply with the conditions of probation.


3.
       The minimum constitutional due process rights possessed by a probationer include
written notice of the claimed violations of probation; disclosure to the probationer of the
evidence against him or her; the opportunity to be heard in person and to present
evidence and witnesses; the right to the assistance of counsel; the right to confront and
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cross-examine adverse witnesses; a neutral and detached hearing body; and a written
statement by the factfinder as to the evidence relied upon and the reasons for revoking
probation. The protections provided under K.S.A. 2011 Supp. 22-3716 satisfy all of the
constitutional due process requirements.


4.
        Where probation revocation is not accomplished in accordance with the required
statutory provisions, resulting in a due process violation, the error is constitutional in
nature and requires the State to persuade the reviewing court, beyond a reasonable doubt,
that there is no reasonable possibility that the error affected the outcome. Where the State
has not met its burden to prove that the denial of the defendant's due process rights at his
or her probation revocation hearing was harmless, remand to the district court for a
probation revocation hearing that comports with statutory and constitutional requirements
is the appropriate remedy.


        Review of the judgment of the Court of Appeals in an unpublished opinion filed March 28, 2014.
Appeal from Saline District Court; JEROME P. HELLMER, judge. Opinion filed January 8, 2016. Judgment
of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed
and remanded with directions.


        Heather Cessna, of Kansas Appellate Defender Office, was on the brief for appellant.


        Charles Ault-Duell, assistant county attorney, Ellen Mitchell, county attorney, and Derek
Schmidt, attorney general, were on the brief for appellee.


The opinion of the court was delivered by


        JOHNSON, J.: Greyson Hurley petitions this court to review the Court of Appeals'
decision affirming his probation revocation. Hurley claims that the panel erred in

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rejecting his claims that the district court lacked jurisdiction to reopen his probation
revocation hearing after pronouncing its disposition and that the district court violated his
due process rights by summarily revoking his newly imposed probation without hearing
based upon the newly alleged probation violation of contemptuous conduct in court.
Finding that the district court revoked Hurley's probation based upon a ground for which
Hurley was not provided sufficient notice and opportunity to be heard, we reverse and
remand to the district court for a new probation revocation hearing.


                           FACTUAL AND PROCEDURAL OVERVIEW

       Hurley was serving a nonprison sentence of probation with community corrections
supervision in three cases when the State filed a motion to revoke that probation on July
17, 2012. The motion alleged that Hurley had failed to: (1) report to his ISO as directed;
(2) work faithfully at full time employment; (3) obey a curfew as set up by the intensive
supervision officer (ISO); and (4) submit to urinalysis testing. A factual narrative of the
alleged violations was provided with the State's request for a show cause hearing.


       The district court conducted a probation revocation hearing on August 28, 2012, at
which Hurley stipulated to the allegations contained within the show cause narrative and
stipulated that he had violated the terms of his probation. The district court asked Hurley
whether he understood that if the court accepted Hurley's stipulation, then the court
would "revoke you in each case and then we'll talk about disposition?" After Hurley
answered in the affirmative, the judge declared: "Alright, the court will accept the waiver
in all three cases and the stipulation, I'll revoke."


       After revoking Hurley's probation, the district court asked for the State's position
on disposition. The prosecutor stated a number of reasons for the position that "the State's
asking the court to go ahead and send Mr. Hurley to prison on these cases, this isn't a case

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that needs to drag on for two and three shots at probation." But Hurley's ISO requested
that the district court impose a 30-day sanction for each of the three cases in which he
was serving probation, i.e., a 90-day jail sanction instead of sending Hurley to prison.
The ISO explained that he was recommending a reinstatement with jail sanction because
the ISO had not supervised Hurley long enough to know if probation was a waste of
resources.


       The district court then provided Hurley an opportunity to address the court, during
which Hurley admitted to taking opiates after suffering a work injury. He also admitted
that he could not obtain work due to his criminal history, but he claimed that he was
providing child care for his fiancée so that she could work.


       After hearing from each of the represented parties, the district court discussed the
pros and cons of continuing Hurley on probation, ultimately stating: "[T]he court's going
to reinstate you on probation, the same terms and conditions, the same timeframe, but
you are going to have to serve the 90 day sanction." Hurley responded by asking the
district court if he could just go to prison, expressing that 90 days for a first violation was
severe. The district court advised Hurley that going to prison was a viable option but that
Hurley should talk to his attorney before committing to that option, and the court
recessed the hearing.


       When the hearing resumed, Hurley asked if he could serve the 90 days on
weekends so that he could continue to provide weekday care for his fiancée's children.
After the district court denied that request, the prosecutor objected to continuing the
probation revocation hearing after the pronouncement of disposition, specifically stating:
"I mean, it's a little unusual to have . . . the court impose the sentence and then come back
and have a second bite at the apple, I mean. . . . That's kind of unfair to the parties by its
nature."
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       After the district court explained that the only reason for the recess was to
determine whether Hurley accepted the sanction or wanted to serve his full time, Hurley's
attorney advised the court that Hurley "would do the 90 then if the court would allow him
the opportunity to be placed back on probation." Following the judge's rejection of
Hurley's request for a different ISO, the judge stated:


               "Alright, Mr. Hurley, I've revoked but I'll reinstate for the same terms and
       conditions for [an] additional period of 12 months, 90 day sanction to be served before
       you are eligible for that reinstatement, and make sure you follow all the rules that are in
       place and hopefully be successful, thank you."


       While the prosecutor was seeking clarification on the start date of the 90-day jail
sanction and the 12-month probation extension, the ISO interrupted to say: "Your Honor,
he just told me to 'fuck off' and called me an asshole." The exchange in the courtroom
proceeded as follows:


               "[Hurley]: No, I didn't tell you, actually said . . .


               "[ISO]: You said, 'Fuck you, asshole.'


               "[Hurley]: I said that to somebody else.


               "[Judge]: Well, there's nobody else in the courtroom.


               "MR. MARK MITCHELL: Who else would you have said it to?


               "[Hurley]: I didn't even look in you all's direction.


               "[Judge]: Well, maybe not successful then.


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               "[Prosecutor]: Your Honor, at this point in time, I'm going to ask the court to
       find the defendant in contempt.


               "[Hurley]: Contempt of what?


               "[Defense counsel]: Just stop talking.


               "[Prosecutor]: And—I'm sorry, Judge.


               "[Judge]: Mr. Hurley, you are struggling and this isn't working.


               "[Hurley]: I apologize.


               "[Judge]: The court enters a finding of contempt now.


               "[Prosecutor]: Judge, I think the court has seen what you are dealing with here,
       this particular person, I'm going to ask the court to reopen your—to reopen your ruling on
       the probation matters and send him to prison, I mean, what—how else are we supposed to
       deal with this, Judge, I just don't understand, I think that the appropriate sanction for his
       contemptuous actions is for the court to reconsider the sentence it just imposed and
       impose the prison sentence."


       Hurley's attorney then asked for an opportunity to speak and apologized to the
court for Hurley's actions. The district court responded that "it's not your apolog[y]; it is
not your actions, it's Mr. Hurley's actions," but then when Hurley attempted to speak, the
district court would not permit it, cutting him off with the statement: "No, Mr. Hurley,
you do not understand, you need to be quiet, your attorney speaks for you."


       Defense counsel then objected to the prosecutor's suggestion that the court could
reopen the completed probation revocation hearing based upon a subsequent
contemptuous act. Rather, the defense argued that the appropriate remedy for contempt is

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to impose a separate penalty commensurate with the contemptuous act. Nevertheless,
after some discourse, the court found "that the appropriate sanction is to reopen this
matter and to consider whether or not Mr. Hurley should be reinstated, with a 90 day
sanction or whether he should simply be remanded to serve his time." (Emphasis added.)
The court settled on remanding Hurley to prison.


       Thereafter, the court denied Hurley's request to speak, stating "[y]ou may speak
with your attorney and she may file the appropriate motions, Mr. Hurley." Subsequently,
Hurley sent the district court a letter, explaining and apologizing for his actions during
the probation revocation hearing, concluding with the statement: "I hope this letter
conveys to you that which [defense counsel] and myself could not that day and that you
will understand that which I could not articulate in person to you due to the stress and
your commanding presence."


       The disposition section of the Journal Entry of Probation Revocation Hearing
recited: "Defendant ordered to serve 90 day sanction and be reinstated on probation.
Defendant then found in direct contempt of court for inappropriate comment. Court
reconsiders disposition of probation and orders Defendant to serve original sentence."
Then, under the description of probation violations, the journal entry included "Defendant
convicted of direct contempt." The district court also filed a Journal Entry of Contempt
Pursuant to K.S.A. 20-1203, reciting that after the defendant's contemptuous conduct,
"the Court revoked the Defendant's probation, denied Defendant's McGill motion to
modify his sentences, and remanded him to serve his original sentences."


                               REVOCATION OF PROBATION

       On appeal to the Court of Appeals, Hurley stated one issue—whether the district
court erred when it reopened the probation revocation hearing and revoked his probation

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for contempt—but argued three reasons that the maneuver was erroneous. First, Hurley
made the jurisdictional argument that once the district court had pronounced that it was
reinstating probation, the pending probation revocation proceeding was concluded and
that to impose another disposition required a new probation revocation hearing. Second,
Hurley claimed a due process violation for revoking his reinstated probation on new
grounds without providing him with the procedural rights to which he was entitled. Last,
Hurley argued that the district court could not revoke his probation as a sanction for
contempt because that would allow an "end-run" around the constitutional rights a
defendant is guaranteed in probation revocation hearings. The Court of Appeals rejected
all three arguments. State v. Hurley, No. 108,735, 2014 WL 1302609, at *8 (Kan. App.
2014) (unpublished opinion).


Standard of Review

       Where the issue is the propriety of the sanction imposed by the district court for a
probationer's violation of the terms and conditions of probation, the standard of review is
an abuse of discretion. State v. Rocha, 30 Kan. App. 2d 817, 819, 48 P.3d 683 (2002).
But where the question is whether the district court complied with due process
requirements in revoking a defendant's probation, an appellate court employs an
unlimited standard of review. State v. Hall, 287 Kan. 139, 143, 195 P.3d 220 (2008).


Analysis

       The Court of Appeals began its analysis by determining that "the district court did
not lose jurisdiction over its ability to modify, extend, or revoke Hurley's probation upon
its initial decision to reinstate his term for an additional 12 months." Hurley, 2014 WL
1302609, at *4. That declaration appears to miss the point. Under the facts presented
here, the question is not whether the district court retained the jurisdictional authority to
modify, extend, or revoke Hurley's reinstated probation, but rather the issue is whether
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the court's exercise of jurisdiction comported with statutory and due process
requirements.


       In that vein, the panel's reliance on the concept "that probation is a privilege rather
than a right" to opine that it is appropriate for a court to summarily revoke a probation as
a sanction for contempt is similarly misplaced. 2014 WL 1302609, at *8. Although the
initial decision to impose probation is an act of grace, once the privilege of probation has
been bestowed upon a defendant, he or she acquires a conditional liberty interest which is
subject to substantive and procedural due process limits on its revocation. See State v.
Walker, 260 Kan. 803, 808, 926 P.2d 218 (1996) (quoting Black v. Romano, 471 U.S.
606, 610, 105 S. Ct. 2254, 85 L. Ed. 2d 636 [1985]). For instance, "[a] probationer may
not have his or her probation revoked unless it is made to appear that the probationer has
failed to comply with the conditions of probation." Walker, 260 Kan. at 808.
Accordingly, Hurley's contemptuous conduct would permit revocation of his probation
only if it were determined to be a violation of his probation conditions.


       The panel attempts to circumvent this obstacle by noting that Hurley stipulated to
the probation violations which prompted the probation revocation hearing and opining
that the "stipulation alone provided the district court adequate grounds to revoke Hurley's
probation regardless of his subsequent outburst." Hurley, 2014 WL 1302609, at *5. The
stipulation was, indeed, sufficient to support the district court's revocation of the existing
probation. But after the court used the stipulation to revoke Hurley's probation, it chose
the sanction of a reinstated probation for an additional 12-month term. In State v. Hymer,
27 Kan. App. 2d 1054, 1055, 11 P.3d 94 (2000), rev'd on other grounds 271 Kan. 716, 26
P.3d 63 (2001), a Court of Appeals panel relied on State v. Royse, 252 Kan. 394, 398, 845
P.2d 44 (1993), to hold that once a district court imposes a sentence of probation, it is
powerless to modify or depart from the sentence, albeit the district court does have the
power and jurisdiction to revoke the probation.
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       In this case, the court subsequently ordered Hurley to prison based upon his
allegedly contemptuous statement to the ISO to which Hurley did not stipulate. The
court's pronouncements from the bench, together with the filed journal entries, confirm
that Hurley received the prison sanction for his courtroom behavior and not for the
violations to which he had previously stipulated. That could not be accomplished as a
modified sentence but only as a subsequent revocation.


       To again revoke Hurley's probation, the district court had to conform with due
process. In Morrissey v. Brewer, 408 U.S. 471, 488-89, 92 S. Ct. 2593, 33 L. Ed. 2d 484
(1972), the United States Supreme Court established minimum due process rights for
parolees and extended those rights to probationers in Gagnon v. Scarpelli, 411 U.S. 778,
782, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973).


       "Minimum due process includes written notice of the claimed violations of probation,
       disclosure to the probationer of the evidence against him or her, the opportunity to be
       heard in person and to present evidence and witnesses, the right to confront and cross-
       examine adverse witnesses, a neutral and detached hearing body, and a written statement
       by the factfinder as to the evidence relied on and reasons for revoking probation. The
       probationer also has a right to the assistance of counsel." State v. Billings, 30 Kan. App.
       2d 236, 238, 39 P.3d 682 (2002) (citing Black v. Romano, 471 U.S. 606, 612, 105 S. Ct.
       2254, 85 L. Ed. 2d 636 [1985]).


       K.S.A. 2011 Supp. 22-3716, the probation revocation statute in effect during the
relevant time period in this case, has been determined to satisfy "all constitutional
requirements" set forth in Gagnon. See State v. Rasler, 216 Kan. 292, 296, 532 P.2d 1077
(1975). That statute requires the ISO to "submit in writing a report showing in what
manner the defendant has violated the conditions of release"; requires the district court to
conduct a probation revocation hearing "in open court"; requires the State to carry its

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burden of establishing the violation; requires that the defendant have the right to counsel;
and requires that "[t]he defendant shall have the right to present the testimony of
witnesses and other evidence on the defendant's behalf." K.S.A. 2011 Supp. 22-3716(b).


       The panel's conclusory determination that Hurley received all of his
"constitutionally-guaranteed due process protections" does not withstand closer scrutiny
with respect to the district court's final revocation based upon the allegation of contempt.
See Hurley, 2014 WL 1302609, at *5.


       Although Hurley had an attorney that argued on his behalf, both before and after
the alleged contempt, his counsel was not given the opportunity to insure that Hurley was
provided all of the statutory protections to which he was entitled. For instance, Hurley
was not provided with written notice of the manner in which he violated the conditions of
probation, i.e., what term or condition of probation prohibited the probationer from
cursing at his ISO or from being held in contempt of court. Likewise, the State was not
required to present testimony or evidence proving the alleged probation violation, but
rather the ISO simply made an unsworn and unsolicited accusation to the judge. Because
the State was not required to bear its burden of proving a probation violation, Hurley was
denied any opportunity to confront and cross-examine under oath the witness against
him, i.e., the ISO.


       Perhaps most importantly, Hurley was denied his due process right to have an
opportunity to be heard prior to the final probation revocation. See Walker, 260 Kan. at
809 (At probation revocation hearing, probationer entitled to opportunity to show he or
she did not violate the conditions of probation; or that there was justifiable excuse for any
violation; or that revocation is not appropriate disposition.). As noted above, the defense
counsel admonished Hurley to be quiet when he attempted to apologize and/or explain
his conduct. The district court explicitly refused to let Hurley speak. And Hurley
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obviously did not waive his right to be heard, as evidenced by his attempts to speak in
court, as well as by his subsequent letter to the judge.


       In short, the revocation of Hurley's probation was not accomplished in accordance
with the statutory provisions that are necessitated by due process requirements. Because
the error was constitutional in nature, the burden is on the State to persuade us "beyond a
reasonable doubt that the error complained of will not or did not affect the outcome of the
trial in light of the entire record, i.e., proves there is no reasonable possibility that the
error affected the verdict." State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011), cert.
denied 132 S. Ct. 1594 (2012). Here, the State makes no such argument, instead
contending that no error occurred. Accordingly, we remand to the district court for a
probation revocation hearing that comports with statutory and constitutional
requirements. Cf. State v. Jackson, 234 Kan. 84, 88, 670 P.2d 1327 (1983) (remanding for
new probation revocation hearing where defendant denied the right to present witness at
original hearing).


       Reversed and remanded.




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