                                        No. 119,303
                                            119,304

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                    STATE OF KANSAS,
                                        Appellee,

                                             v.

                                  GUADALUPE J. DURAN,
                                      Appellant.


                              SYLLABUS BY THE COURT

1.
       To bypass intermediate sanctions for violations of probation under K.S.A. 2018
Supp. 22-3716(c)(9)(A), a district court must find and set forth with particularity the
reasons for finding that the safety of members of the public will be jeopardized or that the
welfare of the offender will not be served by such sanction.


2.
       The district court's findings under K.S.A. 2018 Supp. 22-3716(c)(9)(A) that the
safety of members of the public will be jeopardized or that the welfare of the offender
will not be served by imposing intermediate sanctions for a probation violation are not
specific enough to bypass intermediate sanctions if an appellate court must infer from the
judge's findings the particularized reasons why public safety would be jeopardized or the
offender's welfare would not be served.


3.
       Broad generalizations about public safety and offender welfare that could easily
apply to all similar cases are not sufficiently particularized to meet the requirements of
K.S.A. 2018 Supp. 22-3716(c)(9)(A).

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4.
        Regardless of whether a judge has threatened previously to revoke a defendant's
probation if there are any violations of probation, the Legislature has clearly chosen to
limit the court's ability to follow through on such a threat by legislating a scheme of
intermediate sanctions.


        Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed June 21, 2019.
Reversed and remanded with directions.


        Jennifer C. Roth, 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 ARNOLD-BURGER, C.J., HILL, J., and STUTZMAN, S.J.


        ARNOLD-BURGER, C.J.: If the district court finds "with particularity" that
intermediate sanctions would jeopardize public safety or that the welfare of the offender
will not be served by the imposition of intermediate sanctions, the district court may
order the offender who has violated probation to serve his or her underlying sentence.
K.S.A. 2018 Supp. 22-3716. But the court's order must state the reasons for its findings
with particularity. The district court's findings are not specific enough to bypass
intermediate sanctions if an appellate court must infer from the judge's findings the
particularized reasons the public safety would be jeopardized or the offender's welfare
would not be served. See State v. Clapp, 308 Kan. 976, Syl. ¶ 4, 425 P.3d 605 (2018).


        Guadalupe J. Duran was sentenced in two cases on two occasions. The court
offered Duran, and he accepted, probation on each case with a lengthy underlying
sentence. After Duran violated his probation, the district court bypassed graduated
sanctions and ordered Duran to serve his underlying sentences because the court believed

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continued probation would jeopardize public safety and would not serve Duran's welfare.
Duran appeals, arguing the district court's findings lacked the required specificity.
Because the district court abused its discretion by revoking Duran's probation without
setting forth with particularity the reasons for finding that the safety of members of the
public would be jeopardized or that Duran's welfare would not be served by imposing an
intermediate sanction, we remand the case for a new dispositional hearing.


                          FACTUAL AND PROCEDURAL HISTORY


       In April 2016, Duran pleaded guilty to criminal possession of a weapon by a
convicted felon. The weapon was a knife found during a pat-down search. The court
sentenced him to 17 months in prison but released him on probation for 18 months.
About a year later, the State alleged Duran violated the terms of his probation by
committing new crimes. Duran pleaded guilty to the new crimes of criminal possession of
a weapon by a convicted felon and possession of methamphetamine. This time the
weapon was a 4-inch knife found in his car after a traffic stop.


       The court held a joint probation violation hearing and sentencing hearing. The
court found that Duran qualified for presumptive prison for his new convictions. His
counsel requested a dispositional departure, arguing Duran wanted to go to inpatient drug
treatment. He explained that Duran was "maybe uncomfortable with the idea of getting
out into the community immediately without going first to some inpatient." Duran
acknowledged that he failed to complete inpatient treatment in 1984 and 2016.


       After listening to Duran's request the district court stated that he was going to give
Duran a choice. The court informed Duran:




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      "I know what your answer's going to be before you give it to me, Mr. Duran, I just know
      what it is. I know ultimately what the result's going to be. But I'll give you your choice in
      these matters.


              "If you want to choose today and admit to yourself that you'll probably fail on
      probation, in the [second case], I would impose a 7 month sentence on Count 1, a reduced
      24 month sentence on Count 2. I would run those two counts concurrent with each other.


              "I would reduce the sentence in the [first case] to 12 months. That would still be
      consecutive to the [second case], but that would give you an overall prison sentence of 36
      months. Less jail credit, less 20 percent reduction of your sentence for good time. So
      that's three years at most in prison if you admit that you're probably going to fail on
      probation. That's your first choice.


              "And I want you to visit with Mr. Smartt before you give me your answer, even
      though I know what your answer's going to be.


              "Your second choice is I'll grant you probation, I'll make the necessary findings
      to do so, and I'll reinstate you in the [first] case as well, but I'll impose high number of 9
      months on Count 1 and 36 months in Count 2 in the [second] case. I would run those
      consecutive to each other for a controlling sentence of 45 months in that case. I would
      leave the sentence in the [first] case to 17 months. It would still be consecutive to the
      [second] case. That would give you an overall controlling sentence between those two
      cases of 62 months, over five years in prison.


              "There would be no reduction, no reinstatement, zero tolerance for any
      noncompliance with drug and alcohol or mental health treatment, any positive UA for
      any alcohol or illegal drugs, any possession of weapons. Any commission of any crime, I
      don't care what it is, driving while suspended all the way up to murder, no reduction, no
      reinstatement. You would be going to prison for the balance of 62 months upon a
      subsequent probation violation raising any of those issues."


Duran told the court he wanted probation. The court continued Duran's probation in the
first case and granted him probation in the second with underlying sentences consistent
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with what the court told Duran when offering him a choice. The court found that Duran's
offenses were not crimes of violence. Finally, the district court ordered Duran to serve a
30-day jail sanction on his first case and continued him on probation. The court directed
Duran to make arrangements for inpatient treatment during the 30-day period.


       Duran was released from custody in early February 2018 but did not enter
inpatient treatment. Just three days after his release, Duran tested positive for
methamphetamine. Duran stipulated to violating his probation. Community Corrections
recommended that the court order Duran to serve his underlying sentences. The State also
requested that the court order Duran to serve his underlying sentences and make findings
that continued probation would not be in the interest of community safety or Duran's
welfare.


       After hearing arguments from both parties the court said:


               "If I were to reinstate your probation and I were to order you into treatment, I
       seriously doubt that would be any different than what happened at the January . . .
       probation violation hearing where I reinstated you, ordered treatment, gave you a 30 day
       jail sanction.


               "You were released on February 2nd, 2018, and you had a positive for
       methamphetamine and amphetamine on February 5th of 2018. Despite your intentions, I
       find you're going to give way to your addiction. And that's historically the case.


               "I understand your desire not to go to prison. I understand the rationalization that
       you justify your desire to not go to prison despite your long-term addiction. But I'm going
       to find that reinstatement of probation is not in your best interest, would not be in your
       welfare because you are likely to obtain new probation violation matters based on repeat
       behaviors, as you've already shown in the prior probation warrants. Drug usage, weapon
       possession. You have the possibility of incurring new charges. Public safety's impacted in
       a negative way because of the demonstrated history and the, again, possibility that you


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       would have possession and possibly use of weaponry in the future. You would certainly
       be fueling the drug economy, which is illegal in and of itself.


               "If I were to reinstate you to probation, all I could do would be to tell you you
       have to abide by probation, or in the event of a probation violation warrant, I would send
       you to prison. That's exactly what I did on January 4, and that didn't have any benefit.


               "You knew you were looking at a 62 month sentence. You knew I had imposed
       zero tolerance, yet you still gave into your addiction and you used. I don't see how that
       has changed any at this point in time.


               "I'm going to make those findings I've stated that it's not—reinstatement would
       not be in your best interest of welfare, that public safety would be impacted in a negative
       way."


       The court revoked Duran's sentence and ordered him to serve his underlying
sentences. The journal entries noted "[r]einstatement and continued" probation would (1)
not be in Duran's welfare or best interest because he continued to use drugs and obtain
new charges and convictions and (2) impact public safety because he might use weapons
and would continue to fuel the drug economy. Duran appeals the revocation of his
probation. This court consolidated the cases for appellate purposes.


                                                ANALYSIS


       On appeal, Duran argues the district court erred by bypassing intermediate
graduated sanctions and ordering him to serve his underlying sentence without making
the particularized findings supporting its decision required by K.S.A. 2018 Supp. 22-
3716(c)(9)(A).




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Our standard of review is abuse of discretion.


       Once a probation violation has been established, the decision to revoke probation
rests within the sound discretion of the district court. State v. McFeeters, 52 Kan. App. 2d
45, 47, 362 P.3d 603 (2015). A judicial action constitutes an abuse of discretion if (1) no
reasonable person would take the view adopted by the trial court; (2) it is based on an
error of law; or (3) it is based on an error of fact. State v. Marshall, 303 Kan. 438, 445,
362 P.3d 587 (2015).


A court may bypass intermediate sanctions under K.S.A. 2018 Supp. 22-3716 in limited
circumstances.


       Generally, the district court is required to order a probation violator to serve a
series of graduated intermediate sanctions before revoking probation and ordering him or
her to serve the remainder of the underlying prison sentence. See K.S.A. 2018 Supp. 22-
3716(c)(1). One exception to the general rule is in K.S.A. 2018 Supp. 22-3716(c)(9)(A),
which allows the district court to bypass intermediate sanctions if the court "finds and
sets forth with particularity the reasons for finding that the safety of members of the
public will be jeopardized or that the welfare of the offender will not be served by such
sanction." "When something is to be set forth with particularity, it must be distinct rather
than general, with exactitude of detail, especially in description or stated with attention to
or concern with details." State v. Huskey, 17 Kan. App. 2d 237, Syl. ¶ 2, 834 P.2d 1371
(1992).


       This court addressed the requirement that the district court make its findings with
particularity in McFeeters. The court explained that the district court "must explicitly
address how the public's safety would be jeopardized or how the offender's welfare would
not be served by the imposition of intermediate sanctions." 52 Kan. App. 2d 45, Syl. ¶ 4.


                                              7
In McFeeters, the district court explained its reasoning for bypassing intermediate
sanctions:


       "'My major concern is drug usage. This is a drug case; you've failed to go to treatment.
       You only reported from the records that I see for about two months and I don't know how
       many UAs you had in two months, but I would venture to say you didn't have that many.
       You had one that you were dirty . . . . [Y]ou stopped reporting in two months. . . . [T]here
       was some question in the substance abuse evaluation how accurate your recollection was
       with regard to your usage of drugs. I think that there was some conflicts, at least the
       evaluator believed that you said different things different times as to your drug usage, but
       definitely the recommendation was for completion of the intensive outpatient treatment
       program which you did not do.'" 52 Kan. App. 2d at 47.


       This court held that the district court's comments "simply repeat[ed] the type of
reasoning historically relied upon by sentencing courts in discussing amenability to
probation when exercising their discretion to revoke the privilege of probation." 52 Kan.
App. 2d at 49. The district court's "conclusory remarks about McFeeters' apparent
unwillingness or inability to conform his behavior" failed to explain "how members of
the public would be jeopardized if McFeeters remained on probation or how McFeeters'
welfare would not be served by imposition of the intermediate sanctions." 52 Kan. App.
2d at 49.


       The Kansas Supreme Court relied on McFeeters in Clapp, 308 Kan. 976, Syl. ¶ 4,
to hold "[t]he particularity requirement . . . is not met when an appellate court must imply
the district court's reasons for finding that the safety of members of the public will be
jeopardized or that the welfare of the offender will not be served by the bypassed
intermediate sanction." The facts outlined in Clapp are like the facts in many probation
cases. The State accused Clapp of violating his probation and Clapp stipulated to the
violation. The district court found that Clapp did not commit a new crime or abscond
from probation and that Clapp had a job and was in drug treatment. But the court revoked

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Clapp's probation, bypassing intermediate sanctions solely because, after reciting Clapp's
criminal history, the court felt that Clapp did not value how probation could help him
change his life. And like this court in McFeeters, the Kansas Supreme Court held the
district court's reasoning for bypassing intermediate sanctions was inadequate. 308 Kan.
at 988-91.


       In State v. Dooley, 308 Kan. 641, 653-54, 423 P.3d 469 (2018), decided just one
month before Clapp, the Supreme Court noted that under the scheme in effect before the
adoption of a process of graduated sanctions, a violation of probation in the face of
unfettered judicial discretion often meant the more likely outcome was revocation and
prison. The court suggested the judge's statement that "'[t]his is a serious violation and
you've been on probation before, you knew what was required of you, you were given
several chances'" was reminiscent of the prior scheme, not the current one. 308 Kan. at
653-54.


       Since Clapp several panels of this court have reached similar results under similar
facts—finding the judge failed to state with enough particularity the risk to the
defendant's welfare or the public safety to justify bypassing intermediate sanctions. See
State v. Collins, No. 117,116, 2019 WL 986315, at *4-5 (Kan. App. 2019) (unpublished
opinion) ("[Y]our inability or unwillingness to abide by terms and conditions of
probation are a public safety concern. You're obtaining meth from somewhere. . . . [T]hat
fuels an illegal subculture. Drug deals obviously invoke safety concerns. . . . [Y]ou will
again offend and pick up new charges, get another sentence."), petition for rev. filed
March 29, 2019; State v. Shanholts, No. 118,911, 2019 WL 1303165, at *4-5 (Kan. App.
2019) (unpublished opinion) ("'I'll also find that the welfare of the defendant would not
be served by continuing probation. It doesn't serve anybody any good to continue a
probation that she's not going to follow. So I'll make that specific finding.'"), petition for
rev. filed April 22, 2019. But see State v. Campbell, No. 119,077, 2019 WL 1499168, at
*3-4 (Kan. App. 2019) (unpublished opinion) (finding sufficient evidence to support

                                               9
district court's finding that Campbell's welfare would not be served by imposition of
intermediate sanctions), petition for rev. filed May 2, 2019; State v. Loving, No. 119,851,
2019 WL 1746741, at *2 (Kan. App. 2019) (unpublished opinion) (same).


       The Kansas Supreme Court made clear in Clapp that since 2013 we have a new
probation scheme in Kansas. 308 Kan. at 988-90. That scheme requires more than a
generalized finding that the defendant is not amenable to probation to bypass mandatory
intermediate sanctions. A district court's finding under K.S.A. 2018 Supp. 22-
3716(c)(9)(A) that the safety of members of the public will be jeopardized or that the
welfare of the offender will not be served by imposing intermediate sanctions for a
probation violation is not specific enough to bypass intermediate sanctions if an appellate
court must infer from the judge's finding the particularized reasons why public safety
would be jeopardized or the offender's welfare would not be served.


       Here the district court said Duran was "likely to obtain new probation violation
matters based on repeat behaviors" including "[d]rug usage [and] weapon possession"
which could lead to new charges. It should be noted that the reason for his probation
revocation was not new charges, it was the continued use of drugs. The district court also
found that public safety would be impacted because there was a possibility Duran could
possess and use weaponry in the future and that he would be contributing to the drug
economy. But the court found that Duran's offenses were not crimes of violence. And the
reason for the revocation was unrelated to the use of weapons or any crimes of violence.
In fact, he had not used a weapon in his underlying crimes, he was just found with knives
in his possession. So both of these findings were based on nothing more than general
supposition.


       Findings that a defendant has repeatedly failed to complete treatment and therefore
will likely continue to do so, leading to the possession of weapons, which will lead to the
commission of more crimes and which will undoubtedly fuel the drug economy, is an

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approach that relies on a series of speculative and generalized predictions without
explaining their connections to the particular facts of Duran's case. It is nothing more
than saying "you messed up, you will probably keep messing up, so you are not amenable
to probation." We agree with Duran's statement in his appellate brief that "if courts are
allowed to make an offender welfare finding based on the likelihood that a person
addicted to drugs is going to relapse, then (c)(9) would swallow up the graduated
sanctions system." Likewise, if courts can make an offender welfare finding because a
person might violate his or her probation again, the exception will swallow the rule. And
if courts can base their public safety findings on such generalized conclusions that a
defendant's continued drug usage fuels the drug economy, all probation revocations for
drug usage could result in such a finding and the bypassing of intermediate sanctions. As
previously noted, "[w]hen something is to be set forth with particularity, it must be
distinct rather than general, with exactitude of detail, especially in description or stated
with attention to or concern with details." Huskey, 17 Kan. App. 2d 237, Syl. ¶ 2 (cited
with approval in Clapp, 308 Kan. at 989-90). 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)(A).


       We also pause to note that at his sentencing hearing, the district court judge made
it very clear that he was going to have "zero tolerance" for any violations of probation.
Such a statement is understandably meant to incentivize compliance with probation, but it
is not a justification for bypassing the statutorily mandated intermediate sanctions scheme
for subsequent violations of probation. "Regardless of whether a judge has threatened
previously to revoke a defendant's probation if there are any violations, the legislature has
clearly chosen to limit the court's ability to follow through on such a threat" by legislating
a scheme of intermediate sanctions. State v. Jackson, No. 113,654, 2016 WL 2609638,
at *2 (Kan. App. 2016) (unpublished opinion). Accordingly, it should be reserved for
those situations when a district judge has imposed all mandatory intermediate sanctions


                                              11
and could have revoked the defendant's probation, but didn't. It is at that point that the
judge has full discretion to enforce a zero tolerance policy.


       In sum, based on this court's prior decisions and the guidance our Supreme Court
has provided in Clapp, we find the district court's statements here were not particularized
enough to bypass intermediate sanctions on the basis of a threat to public safety or
offender welfare. Because the district court abused its discretion by revoking Duran's
probation without setting forth with particularity the reasons for finding that the safety of
members of the public would be jeopardized or that the welfare of the offender would not
be served by imposing an intermediate sanction, we remand the case for a new
dispositional hearing.


We cannot affirm the district court for a discretionary decision the court did not make.


       The State argues this court can affirm the district court, at least in part, on other
grounds because Duran's probation sentence in the second case stemmed from a
dispositional departure. Under K.S.A. 2018 Supp. 22-3716(c)(9)(B), the district court
may bypass graduated sanctions if the original probation sentence was the result of a
dispositional departure. But this court cannot rely on K.S.A. 2018 Supp. 22-
3716(c)(9)(B) when the district court did not invoke it while revoking the defendant's
probation. In other words, we cannot affirm the district court for a discretionary decision
it did not make. The district court is free to take up this provision on remand.


       Reversed and remanded with directions.




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