                                        No. 120,179

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                    STATE OF KANSAS,
                                        Appellee,

                                             v.

                            RODRIGO FRANCISCO GONZALEZ,
                                     Appellant.


                              SYLLABUS BY THE COURT

1.
       The essential principle embodied in the Due Process Clause of the Fourteenth
Amendment to the United States Constitution is this: The government may not deprive
a person of a property right or a liberty interest without affording that person the
opportunity to be heard in a meaningful way and at a meaningful time to avert a
wrongful deprivation of that right or interest.


2.
       Constitutional due process is an especially elastic concept in that the protections
required vary depending upon the importance of the specific property right or liberty
interest at stake.


3.
       The State may not revoke the probation of a convicted felon who is not mentally
competent at the time of the revocation hearing.




                                             1
4.
        Competency for due process purposes entails the capacity to understand the
nature and object of the proceedings, to consult with a lawyer, and to assist in presenting
a defense.


5.
        A district court has the inherent authority to order a competency evaluation as a
means of extending constitutional due process to a probationer facing revocation.


        Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed December
27, 2019. Remanded with directions.


        Hope Faflick Reynolds and Michelle A. Davis, of Kansas Appellate Defender Office, for
appellant.


        Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.


Before POWELL, P.J., PIERRON and ATCHESON, JJ.


        ATCHESON, J.: Constitutional due process protections preclude district courts
from revoking the probation of convicted felons who have become mentally incompetent
and ordering they serve their underlying sentences of imprisonment. The deprivation of
liberty inflicted on those probationers is sufficiently grave that they must be able to
understand and meaningfully participate in the revocation proceedings. The Due Process
Clause of the Fourteenth Amendment to the United States Constitution requires nothing
less.


        The Sedgwick County District Court may have given Rodrigo Gonzalez
considerably less when it revoked his probation and sent him to prison despite legitimate

                                                    2
concerns he may not have been competent during the revocation hearing. The district
court refused to order a competency evaluation for Gonzalez because the statutory
processes for those evaluations do not explicitly apply to probation revocation
proceedings. But the absence of a statutory device cannot negate a fundamental
constitutional right. The district court, therefore, erred in revoking Gonzalez' probation
without determining he was mentally competent. The error, however, would be harmless
if Gonzalez were competent then. We, therefore, remand the case for further
proceedings, including either a retrospective or present competency evaluation.


                          FACTUAL AND PROCEDURAL HISTORY


       We outline some background facts and procedural history to put this appeal in
context. The State charged Gonzalez with felony battery of a law enforcement officer in
April 2017 because he refused to remove his shoes while he was being booked into the
Sedgwick County jail and then elbowed a corrections officer attempting to move him to
a "safety cell" until he complied. The record indicates Gonzalez was 37 years old and
had numerous convictions for misdemeanors and traffic offenses in Dodge City,
Arkansas City, and Wichita over the course of his adult life. He also had a felony
conviction for battery of a law enforcement officer.


       Early in the case, the lawyer appointed to represent Gonzalez requested an
evaluation to determine if he was mentally competent to stand trial. As provided in
K.S.A. 22-3202, the district court ordered an evaluation and duly received a report from
the mental health professional who examined Gonzalez. Following a hearing in June
2017, the district court entered an order finding Gonzalez to be competent. Neither the
report nor a transcript of that hearing is part of the record on appeal.


       The State and Gonzalez' lawyer reached an agreement calling for Gonzalez to
plead guilty with a sentencing recommendation to the district court for a dispositional

                                              3
departure to probation. The written plea agreement acknowledged Gonzalez' history of
mental illness and a related, though unidentified, seizure disorder as factors that
contributed to and mitigated his wrongful conduct in the jail. The agreement also
recognized the availability of appropriate health care in the community as a ground for
the recommended sentence.


       At a hearing in January 2018, the district court accepted Gonzalez' guilty plea.
The district court later sentenced Gonzalez to 52 months in prison and, consistent with
the parties' agreement, granted the motion for a dispositional departure to probation for
36 months.


       In late July, the district court issued a warrant for Gonzalez because he had tested
positive for alcohol several times, violating the terms of his probation. Gonzalez was
taken into custody on the warrant, and the district court appointed a lawyer to represent
him at a probation revocation hearing.


       At the hearing about a month later, the lawyer informed the district court that
Gonzalez had refused to meet with her in the jail several days earlier. The lawyer
indicated she was having difficulty communicating with Gonzalez just before the
hearing. The district court asked Gonzalez directly if he understood what was going on.
He responded:


                "This is the first time I have been on this case. I don't know what you are trying
       to tell me. I am just hearing you, but I am not paying attention about it, sir. That's all. I
       don't know.
                "If I have to challenge it, I will challenge it. This is the first time I have ever done
       this."


Gonzalez' response may be fairly characterized at the very least as diffuse and perhaps
as disordered. It was not, however, patently irrational or illustrative of a complete break
                                                      4
with reality. The district court took a brief recess so Gonzalez and his lawyer could
confer.


       When the hearing reconvened, the district court established that the problem was
not a language barrier. Gonzalez' lawyer explained that Gonzalez did not seem to
appreciate what was going on. And, as a result, the lawyer questioned whether Gonzalez
was mentally competent. She told the district court that were this the beginning of a
criminal case rather than a probation revocation hearing, she would likely ask for a
competency evaluation.


       The district court suggested that Gonzalez had to be mentally competent to go
forward with the hearing. His lawyer agreed. The prosecutor objected and submitted that
no statutory authority permitted a stay for a competency hearing after a defendant had
been adjudged guilty. The district court postponed the revocation hearing for several
days to allow the lawyers to look into how the matter should be handled. The district
court held a short hearing five days later and simply set the probation revocation for an
evidentiary hearing the following week. The lawyers did not bring up Gonzalez'
competency, and the district court did not address it.


       At the start of the evidentiary hearing, Gonzalez' lawyer again raised concerns
about his mental competency and pointed out that he had not been evaluated. The district
court responded that it had been "informed" there were no procedures for competency
evaluations after a defendant's conviction. So the district court concluded "unless that
has changed, the matter [of Gonzalez' competency] will remain unresolved."


       The State then presented three witnesses and two exhibits to prove the alleged
probation violations. Gonzalez' lawyer cross-examined those witnesses but offered no
additional evidence. Gonzalez did not testify. Based on the evidence, the district court
found that Gonzalez had consumed alcohol multiple times in violation of the conditions

                                             5
of probation. In considering what disposition to make, the district court mentioned both
Gonzalez' rather lengthy list of criminal convictions and his mental health issues. On
balance, the district court concluded Gonzalez was not amenable to continued probation
and ordered that he serve his 52-month prison sentence. Gonzalez has appealed that
ruling.


                                       LEGAL ANALYSIS


          For his only issue on appeal, Gonzalez asserts he had a constitutionally protected
due process right to be mentally competent at his probation revocation hearing. We
agree. In turn, Gonzalez says the appropriate remedy requires the revocation order be set
aside and he be given a new hearing. As we explain, that may not be the best tailored
remedy. But, with some qualification, it provides an acceptable alternative.


          At the outset, we put to rest the State's argument on appeal that Gonzalez didn't
preserve his constitutional claim in the district court and should not be permitted to raise
it now. Gonzalez' lawyer twice questioned Gonzalez' mental competence and requested
relief from the district court. The record in the district court lent support to the lawyer's
concern—the circumstances of the underlying crime were suggestive of some degree of
mental decompensation and the explicit terms of the plea agreement acknowledged
Gonzalez' chronic mental health issues.


          Although the lawyer did not cite any particular legal source—constitutional or
otherwise—for Gonzalez' right to be sufficiently mentally engaged to participate
meaningfully in the hearing, she did assert that right. The district court acknowledged
the issue and recognized a potential problem without an apparent solution. The lawyer's
failure to mention the words "constitutional" or "due process" in her discussion with the
district court does not amount to a waiver or forfeiture of Gonzalez' Fourteenth
Amendment rights. See Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed.

                                               6
2d 274 (1969) (waiver of constitutional right must be intelligently and understandingly
made and will not be inferred); State v. Bunyard, 307 Kan. 463, 470, 410 P.3d 902
(2018) (court will not presume defendant's acquiescence in loss of fundamental right).
We, therefore, may consider the issue.


The Right Considered


       The essential principle embodied in the Due Process Clause is this: The
government may not deprive a person of a property right or a liberty interest without
affording that person the opportunity to be heard in a meaningful way and at a
meaningful time to avert a wrongful deprivation of that right or interest. 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."); Taylor v.
Kansas Dept. of Health & Environment, 49 Kan. App. 2d 233, Syl. ¶ 4, 305 P.3d 729
(2013). Constitutional due process is an especially elastic concept in that the protections
required vary depending upon the importance of the specific property right or liberty
interest at stake. Not surprisingly, those government actions aimed at involuntarily
confining a person—an especially stringent deprivation of liberty—call for exacting due
process protections. See Hamdi v. Rumsfeld, 542 U.S. 507, 529, 124 S. Ct. 2633, 159 L.
Ed. 2d 578 (2004) ("[T]he most elemental of liberty interests [is] the interest in being
free from physical detention by one's own government."); Foucha v. Louisiana, 504 U.S.
71, 78-80, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992) (government effort to involuntarily
commit individual because of mental illness implicates substantive liberty rights and
triggers procedural due process protections).


                                             7
       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.


       Conspicuously missing from the list is a mandatory right to legal representation.
In Morrissey, the Court declined to address whether parolees had a right to legal
representation at revocation hearings. 408 U.S. at 489. In Gagnon, the Court concluded
that the circumstances of a given case would dictate whether a probationer had a due
process right to appear at a revocation hearing with a lawyer. The Court suggested
probationers would presumptively be entitled to legal representation if they offered
either "colorable claim[s]" the factual grounds for the revocation were wrong or
compelling mitigating circumstances weighing against revocation notwithstanding
proved violations, especially if those circumstances could be considered "complex or

                                             8
otherwise difficult to develop." And the Court invited the adjudicating authority to take
into account the ability of a given probationer to effectively speak on his or her own
behalf, particularly in a "doubtful" case. 411 U.S. at 790-91.


       Extracted from the rarified confines of its origin, the case-by-case approach to
legal representation seems impractical. The risk of error in refusing to allow a given
probationer to appear with a lawyer would be exceedingly difficult to predict, depending
largely on an after-the-fact judgment of a reviewing court. The Kansas Legislature has
effectively eliminated that uncertainty by statutorily permitting probationers to appear
with counsel at revocation hearings and requiring district courts to appoint lawyers for
indigent probationers. K.S.A. 2018 Supp. 22-3716(b)(2).


       Probation revocations are not considered a critical stage in a criminal prosecution,
since the probationer has already been convicted and sentenced. See Gagnon, 411 U.S.
at 781-82. That difference bears on the source and scope of the attendant constitutional
protections. The protections afforded probationers in Gagnon are judicially identified
components of a constitutional due process right and are geared to the particular liberty
interests at stake. So they haven't the same constitutional anchor as express, though
similar, protections guaranteed accused persons facing criminal prosecution, such as the
Sixth Amendment rights to be informed of the charges and to confront the government's
witnesses. Other express constitutional rights accorded criminal defendants have no
counterparts in the process due probationers under the Fourteenth Amendment, perhaps
most notably trial by jury.[1]

        [1]There is a fair argument that constitutional due process requires that Kansas
probationers be permitted legal representation at revocation hearings. The revocation
procedure entails a hearing in the district court where a county or district attorney
represents the State and the rules of evidence generally apply. See K.S.A. 60-402 (rules
of evidence govern civil and criminal proceedings, unless specifically relaxed by rule or
statute); K.S.A. 22-3716(b)(2) (sworn written statements expressly made admissible in
probation revocation hearings). In Gagnon, the Court envisioned a far less formal

                                             9
hearing when it outlined the process constitutionally due a probationer, suggesting
typically an administrative officer without formal legal training would present the
factual circumstances on behalf of the State to a nonjudicial decisionmaker unhampered
by strict evidentiary rules. 411 U.S. at 789. Whether one model or the other better
promotes fairness or advances identifiable penological goals, a probationer without legal
representation generally would be significantly disadvantaged squaring off against a
trained lawyer in the more formal hearings mandated in Kansas.


       Against that backdrop, the question remains whether the State may revoke the
probation of a convicted felon who is not mentally competent at the time of the
revocation hearing. Neither the United States Supreme Court nor the Kansas Supreme
Court has addressed the issue. Competency for due process purposes entails "the
capacity to understand the nature and object of the proceedings," to consult with a
lawyer, and to assist in presenting a defense. Drope v. Missouri, 420 U.S. 162, 171, 95
S. Ct. 896, 43 L. Ed. 2d 103 (1975); State v. Woods, 301 Kan. 852, 857-58, 348 P.3d 583
(2015). Although the definition of competency has been enunciated in criminal cases, it
is not exclusive to those proceedings. See In re Care & Treatment of Sykes, 303 Kan.
820, Syl. ¶ 3, 367 P.3d 1244 (2016) (recognizing due process definition of competency
but finding respondent in sexually violent predator commitment proceeding need not be
competent). Given the liberty interest at stake in a revocation hearing, the near
ineluctable answer to the question we have posed must be in the negative.


       Assuming a probationer has no constitutional due process right to a lawyer in a
given hearing, he or she would bear the burden of representing himself or herself. By
definition, an incompetent probationer could not do so. To state the obvious, someone
who doesn't understand what's going on can't very well participate in any meaningful
way. The statutory right to a lawyer is largely beside the point in assessing the
constitutional due process protections that must be extended to probationers facing
revocation. Constitutional rights set a floor that a state may exceed but cannot sink
below. See State v. Cheever, 306 Kan. 760, 781, 402 P.3d 1126 (2017). Moreover, as we


                                            10
discuss momentarily, legal representation is not really an adequate due process substitute
for competency in this context.


       The right to a lawyer, whether afforded as a matter of constitutional or statutory
mandate, entails the concomitant right to effective representation by that lawyer. State v.
Galaviz, 296 Kan. 168, 176, 291 P.3d 62 (2012). No matter how sharp a lawyer's
litigation skills, he or she can seldom fashion an effective case for the client without a
thorough grounding in the facts. And oftentimes a client will be a critical source of
information in constructing a narrative of the relevant events, identifying knowledgeable
witnesses, and gathering other evidence. During an evidentiary hearing, the client can
point out possible errors in witness testimony and may provide his or her own
(sometimes) persuasive testimony. To again state the obvious, an incompetent client can
do none of those things. See Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S. Ct. 1373,
134 L. Ed. 2d 498 (1996) (recognizing interdependence of effective legal representation
and mental competence of defendant in criminal prosecution); Donald v. State, 930
N.E.2d 76, 80 (Ind. Ct. App. 2010) ("Without competency, the minimal due process
rights guaranteed to probationers at probation revocation hearings would be rendered
useless."). So a lawyer representing an incompetent client in a probation revocation will
be hamstrung in disputing the State's evidence and marshalling any sort of contrary
defense case.


       With probationers like Gonzalez—who faced a 52-month term of imprisonment
upon revocation—the liberty interest at stake is sufficiently valuable and the risk of error
sufficiently grave that due process requires they be competent. We stand alongside many
other courts in that conclusion.[2]

       [2]Decisions recognizing a probationer or parolee must be competent during
revocation proceedings include: Hayes v. State, 343 So. 2d 672, 672 (Fla. Dist. Ct. App.
1977); Donald, 930 N.E.2d at 80; People v. Martin, 61 Mich. App. 102, 108, 232
N.W.2d 191 (1975); State v. Qualls, 50 Ohio App. 3d 56, 58, 552 N.E.2d 957 (1988);

                                             11
Commonwealth v. Megella, 268 Pa. Super. 316, 321, 408 A.2d 483 (1979); Thompson v.
State, 654 S.W.2d 26, 28 (Tex. App. 1983); State ex rel. Vanderbeke v. Endicott, 210
Wis. 2d 502, 516, 563 N.W.2d 883 (1997). The list is illustrative rather than exhaustive.
The parties have cited no directly contrary authority, and we have found none.

The Remedy Considered


       As we have outlined, the district court declined to order an evaluation to
determine if Gonzalez was competent before conducting the evidentiary hearing and
revoking his probation. There were legitimate reasons to believe Gonzalez may not have
been competent, as the district court acknowledged. The district court, therefore, erred.
Because Gonzalez was not evaluated and the record does not obviously establish that he
was, in fact, incompetent leading up to and during the revocation hearing, we cannot
determine if the error caused any legal prejudice. Were Gonzalez competent at the time,
he would not have been deprived of the constitutional process he was due.


       We, therefore, tailor our remedy to that possibility. On remand, the district court
should determine if a retrospective competency evaluation can be done. That is, an
evaluation aimed at determining if Gonzalez was competent in late August and early
September 2018, when the revocation proceedings took place. See State v. Ford, 302
Kan. 455, Syl. ¶ 8, 353 P.3d 1143 (2015) (recognizing retrospective competency
evaluation as appropriate remedial tool). The feasibility of a retrospective evaluation
depends on the overall circumstances and the lapse of time. Such an evaluation would
require an opinion from a qualified expert witness based on reliable lay accounts of the
subject's mental capacity at the relevant time, any elucidating medical or psychological
examinations of the subject, the expert's own observation and assessment of the subject,
and any other illuminative information. As suggested in Ford, a retrospective evaluation
is an accommodation to the State, since the alternative typically would require setting
aside the result of the challenged proceeding. 302 Kan. at 471-72. The State may waive
the opportunity.

                                            12
         If the State agrees to forgo a retrospective competency evaluation of Gonzalez or
the district court determines such an evaluation is not feasible, then the district court
must set aside the probation revocation. The district court may proceed with a new
revocation hearing should Gonzalez be competent. But the district court may not do so if
Gonzalez plainly appears to be incompetent or if it entertains genuine concerns about his
competence based on its observations or the factually grounded representations of his
lawyer or the prosecutor. As a matter of constitutional due process, the district court then
ought to order a competency evaluation.


         As our discussion implies, we readily conclude a district court has the inherent
authority to order a competency evaluation as a means of extending constitutional due
process to a probationer facing revocation. See State v. Gagne, 129 N.H. 93, 97, 523
A.2d 76 (1986) ("[I]n the exercise of its inherent authority to protect a defendant's
constitutional rights, a district court may order competency evaluations."); State v.
Bellardino, 428 S.C. 247, 834 S.E.2d 457, 459 (2019) (Although not mentioned in the
statute authorizing competency evaluations, a municipal or summary court has the
inherent authority to order such an evaluation of a defendant charged with an offense
punishable by a fine of up to $100 or up to 30 days in jail.); State v. Sisouvanh, 175
Wash. 2d 607, 621, 290 P.3d 942 (2012); cf. Donald, 930 N.E.2d at 80 (Without
invoking inherent judicial authority specifically, the appellate court held that
constitutional due process permits a probationer facing revocation to be evaluated for
mental competence notwithstanding the absence of any statutory authority for an
evaluation.). As the district court recognized, Kansas has no statutory procedure for
competency evaluations in criminal cases after defendants have been sentenced. See
K.S.A. 22-3302(1). But that void cannot be a barrier to effectuating a constitutional
right.




                                              13
       On remand, the district court may look at the approach outlined in K.S.A. 22-
3301 et seq. as a general template for insuring Gonzalez' due process right to be
competent at any probation revocation hearing. In other words, those statutes provide
one design for handling mental competency determinations for probationers, but they are
not necessarily the conclusive measure of constitutional due process.


       If, on remand, the district court ultimately directs that Gonzalez undergo an
evaluation to determine his present competency and the evaluation shows him to be
competent, the district court may then conduct a new revocation hearing.


       In their briefs, neither the State nor Gonzalez addresses what ought to happen if
he is not mentally competent. And the issue in some strict sense is not before us, since
we have no way of knowing what Gonzalez' mental status may be months from now.
But the circumstance represents a very real possibility bound up with the legal question
we are required to answer. We, therefore, perceive an obligation to offer at least a
suggestion on an appropriate course.


       So, do the district courts have the authority to order Gonzalez or someone
similarly situated restored to mental competence in advance of a probation revocation
hearing even if restoration required his involuntary commitment to a mental health
facility for some period? We suppose they do. Gonzalez has a significant liberty interest
at stake—upon revocation, he has to serve 52 months in prison. The restrictions on his
liberty in prison are manifestly greater than those he would experience on probation. As
we have found, the Due Process Clause requires him to be competent when the State
seeks to revoke his probation. There are, then, two logical dispositions: The district
court can either order reasonable steps to restore a probationer's mental competence or
preclude the State from moving forward with the revocation, in effect creating a defense
of incapacity.


                                            14
       There are competing interests of substantial weight to be considered. The
probationer has a due process right to participate meaningfully in the process. Balanced
against that right, the State has an obligation to punish wrongdoers. Concomitantly, the
State can request a convicted defendant's probation be revoked if he or she violates the
terms of that conditional release in serious ways warranting imprisonment on the
underlying sentence. See K.S.A. 2018 Supp. 22-3716(c). The balancing suggests a
district court may order reasonable steps to restore a mentally incompetent probationer
to competency—a result that substantially impairs neither interest and tends to foster
both. Those steps may include carefully measured and monitored inpatient treatment. By
comparison, precluding revocation based on incapacity stymies the State's legitimate
interest and doesn't necessarily advance a probationer's long term objective of
completing his or her sentence.


       We have discovered a striking dearth of law addressing how trial courts should
deal with incompetent probationers facing revocation proceedings. The United States
Supreme Court, however, has held that a state may involuntarily commit a person
charged with a felony but incompetent to stand trial to an appropriate facility for a
reasonable time in an effort to render that person competent. Jackson v. Indiana, 406
U.S. 715, 738, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972). And under certain
circumstances, incompetent persons charged with serious crimes may be detained and
involuntarily administered psychotropic drugs to restore their competency. Sell v. United
States, 539 U.S. 166, 180-81, 123 S. Ct. 2174, 156 L. Ed. 2d 197 (2003). Those
conditions, then, comport with an accused criminal's constitutional rights. By the same
token, the accused cannot be confined indefinitely when the cause of his or her
incompetence is not amenable to treatment or a course of treatment has failed to show
material progress in restoring competence. In short, a criminal defendant incompetent to
stand trial "cannot be held more than the reasonable period of time necessary to
determine whether there is a substantial probability that he [or she] will attain that
capacity in the foreseeable future." Jackson, 406 U.S. at 738.

                                             15
       Those cases are significant here because they fix due process safeguards for
persons accused of serious crimes. As we have noted, the criminally accused command
greater constitutional protections than the convicted, including probationers. So in the
realm of assessing mental competence and ordering restorative treatment, we have no
reason to infer convicted felons on probation would have a stronger constitutional shield
against involuntary commitment than the accused in Jackson and Sell.[3]


       [3]The defendant in Jackson had been charged with two counts of robbery. 406
U.S. at 717. The defendant in Sell faced a slew of felony charges for mail fraud and
Medicaid fraud the Court characterized as "serious, but nonviolent, crimes." 539 U.S. at
169-70. Neither opinion suggests that its reasoning or holding would necessarily apply
to persons charged with misdemeanors. Gonzalez had been convicted of a crime that
generically could be considered both serious and a violent felony, although the specific
factual circumstances tend to soften those characterizations.

       A district court could, therefore, presumably order the involuntary commitment of
an incompetent probationer facing revocation for a reasonable time to receive treatment
designed to render him or her competent. We suppose the time frames in K.S.A. 2018
Supp. 22-3303—90 days for an appropriate mental health professional to assess and
report to the district court whether the person "has a substantial probability of attaining
competency" and, if so, for up to six months (including that 90-day period) to become
competent—may serve as a benchmark of constitutional reasonableness.


A Reservation Noted


       This case does not present and we do not consider in any fashion the due process
implications of intermediate sanctions for a probation violation. Under K.S.A. 2018
Supp. 22-3716(c)(1)(B), a district court may confine a probationer in jail for two or three
days as punishment for a probation violation. And the district court may impose those
short stays for up to a total of 18 days without revoking probation. Likewise, a district

                                             16
court may impose a sanction of up to 60 days in jail for a probation violation—a more
severe punishment but something well short of revocation. K.S.A. 2018 Supp. 22-
3716(c)(11).


       We have reservations about how a probationer's due process right to be
competent at a revocation hearing intersects with those lesser sanctions, particularly a
two- or three-day jail stay. There is a certain incongruence in suggesting incompetent
probationers can be or should be involuntarily committed for months of treatment to
render them competent for a hearing to determine whether they should spend a few days
(or even 60 days) in jail as punishment for violating a condition of their probation. We
posed that incongruity to the lawyers during oral argument and did not have our
concerns allayed. This constitutional conundrum, however, invites no immediately
obvious solution—that's what makes it a conundrum, after all—so we held no real
expectation that the jurisprudential fog might lift during oral argument.


       We mention the intermediate statutory sanctions only to say that we have taken
cognizance of them in outlining the positive due process protections we have identified
for Gonzalez and other probationers in comparable circumstances and to point out that
we do not mean for our outline to be applied to those sanctions. The due process
required for the imposition of statutory sanctions short of revocation presents a distinct
constitutional question calling for a distinct and fully developed constitutional answer.


       Remanded to the district court for further proceedings.




                                            17
