                           NOT DESIGNATED FOR PUBLICATION

                                              No. 121,729

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                          STATE OF KANSAS,
                                              Appellee,

                                                     v.

                                         MARCUS L.WILSON,
                                            Appellant.


                                    MEMORANDUM OPINION

        Appeal from Sedgwick District Court; ERIC WILLIAMS, judge. Opinion filed August 28, 2020.
Affirmed.


        James M. Latta, of Kansas Appellate Defender Office, for appellant.


        Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney and Derek Schmidt,
attorney general, for appellee.


Before HILL, P.J., MALONE, J., and WALKER, S.J.


        PER CURIAM: Marcus L. Wilson appeals the district court's order revoking his
probation after he committed his third probation violation. The district court previously
had imposed a 180-day intermediate prison sanction and then a two-day intermediate jail
sanction. Wilson claims the district court erred in revoking his probation because (1) it
applied the intermediate sanctions out of order; (2) it improperly applied the dispositional
departure exception; and (3) it was unreasonable to revoke his probation based on
technical violations. Finding no reversible error, we affirm the district court's judgment.



                                                     1
       We will briefly review the facts and procedural background of Wilson's case. On
August 29, 2016, the State charged Wilson with one count of aggravated burglary, five
counts of criminal threat, one count of battery, and one count of theft based on events that
occurred on August 25, 2016. On March 26, 2018, Wilson pled guilty to aggravated
burglary and two counts of criminal threat in exchange for dismissal of the other charges.


       On May 25, 2018, the district court sentenced Wilson to a controlling term of 75
months' imprisonment but granted his request for a dispositional departure to probation
for 36 months to be supervised by community corrections. As a condition of probation,
the district court ordered Wilson to submit to random drug testing and to complete drug
and alcohol treatment as directed by his supervision officer.


       Wilson's probation was unsuccessful. At a hearing on October 2, 2018, the district
court found Wilson had violated the terms of his probation by committing domestic
battery and by testing positive for THC and alcohol. The district court ordered Wilson to
serve a 180-day intermediate prison sanction and extended his probation for 36 months.
Wilson did not appeal this order.


       On March 29, 2019, after Wilson had been released early from his intermediate
prison sanction, he admitted to violating the terms of his probation by breaking curfew.
He waived the right to a court hearing and accepted a two-day intermediate jail sanction.


       On May 15, 2019, the district court issued a warrant for Wilson's arrest, alleging
he violated the terms of his probation by testing positive for THC, committing the offense
of domestic battery, and failing to begin drug and alcohol treatment as directed. On June
26, 2019, the district court issued another warrant alleging Wilson violated his probation
by again testing positive for THC.




                                             2
       On July 24, 2019, the district court held a probation violation hearing. The State
dismissed the second violation, that Wilson committed domestic violence, because it
could not locate the victim. It also clarified that the June 2019 warrant was correcting the
date of the positive THC test, it was not a separate violation. Thus, the State proceeded
on the allegations that Wilson had one positive test for THC and he failed to begin drug
and alcohol treatment. Chad Edwards, Wilson's supervision officer, testified about
Wilson's positive test for THC, and the State offered the laboratory results into evidence.
Edwards also testified that after the positive test for THC, he instructed Wilson to start
drug and alcohol treatment, but he never did. After hearing the evidence, the district court
found Wilson had violated his probation. The district court revoked Wilson's probation
and ordered him to serve the original sentence. Wilson timely appeals.


Did the district court err in revoking Wilson's probation after applying the intermediate
sanctions out of order?

       Wilson claims, for the first time on appeal, that the district court erred in revoking
his probation after applying the intermediate sanctions out of order. More specifically,
Wilson argues that the district court abused its discretion by revoking his probation
without "properly climb[ing] the ladder of the graduated sanctioning scheme" when it
imposed a 180-day prison sanction, then a 2-day jail sanction, and then revoked his
probation. He argues that because a prison sanction was not imposed after a jail sanction,
the district court could not revoke his probation.


       We begin by noting that the Legislature amended the graduated sanctioning
scheme to remove the 120-day and 180-day prison sanction, effective July 1, 2019. See
K.S.A. 2019 Supp. 22-3716(c)(1). Under the amendment, the district court may revoke a
defendant's probation after the defendant has received at least one two-day or three-day
jail sanction. See K.S.A. 2019 Supp. 22-3716(c)(1)(C). Neither party argues that the 2019
amendment applies to Wilson's case, so we will not address it further in this opinion.


                                              3
      Because Wilson committed his crimes in August 2016, K.S.A. 2016 Supp. 22-
3716(c)(1) outlines the applicable graduated sanctioning scheme:


              "(c)(1)Except as otherwise provided, if the original crime of conviction was a
      felony, other than a felony specified in K.S.A. 2015 Supp. 21-6804(i), and amendments
      thereto, and a violation is established, the court may impose the following sanctions:
              (A) Continuation or modification of the release conditions of the probation,
      assignment to a community correctional services program, suspension of sentence or
      nonprison sanction;
              (B) continuation or modification of the release conditions of the probation,
      assignment to a community correctional services program, suspension of sentence or
      nonprison sanction and an intermediate sanction of confinement in a county jail to be
      imposed as a two-day or three-day consecutive period. The total of all such sanctions
      imposed pursuant to this subparagraph and subsections (b)(4)(A) and (b)(4)(B) shall not
      exceed 18 total days during the term of supervision;
              (C) if the violator already had at least one intermediate sanction imposed
      pursuant to subsection (b)(4)(A), (b)(4)(B) or (c)(1)(B) related to the crime for which the
      original supervision was imposed, continuation or modification of the release conditions
      of the probation, assignment to a community correctional services program, suspension
      of sentence or nonprison sanction and remanding the defendant to the custody of the
      secretary of corrections for a period of 120 days, subject to a reduction of up to 60 days
      in the discretion of the secretary. This sanction shall not be imposed more than once
      during the term of supervision. The sanction imposed pursuant to this subparagraph shall
      begin upon pronouncement by the court and shall not be served by prior confinement
      credit, except as provided in subsection (c)(7);
              (D) if the violator already had a sanction imposed pursuant to subsection
      (b)(4)(A), (b)(4)(B), (c)(1)(B) or (c)(1)(C) related to the crime for which the original
      supervision was imposed, continuation or modification of the release conditions of the
      probation, assignment to a community correctional services program, suspension of
      sentence or nonprison sanction and remanding the defendant to the custody of the
      secretary of corrections for a period of 180 days, subject to a reduction of up to 90 days
      in the discretion of the secretary. This sanction shall not be imposed more than once
      during the term of supervision. The sanction imposed pursuant to this subparagraph shall


                                                   4
       begin upon pronouncement by the court and shall not be served by prior confinement
       credit, except as provided in subsection (c)(7); or
               (E) if the violator already had a sanction imposed pursuant to subsection
       (c)(1)(C) or (c)(1)(D) related to the crime for which the original supervision was
       imposed, revocation of the probation, assignment to a community corrections services
       program, suspension of sentence or nonprison sanction and requiring such violator to
       serve the sentence imposed, or any lesser sentence and, if imposition of sentence was
       suspended, imposition of any sentence which might originally have been imposed."


       The State first argues that Wilson's claim is not preserved because he did not
appeal the district court's imposition of the 2-day or the 180-day sanction when they were
imposed and so he cannot challenge them now. In his reply brief, Wilson counters that he
is not challenging the imposition of the 2-day or the180-day sanction. Instead, he is
challenging his subsequent probation revocation as impermissible based on the district
court's failure to follow the intermediate sanctioning scheme.


       Wilson's challenge to his probation revocation is properly before this court. First,
he correctly argues this court can hear his claim that the district court applied the
intermediate sanctions out of order for the first time on appeal because it involves a
question of law arising on proved or admitted facts and it is determinative of the case.
See State v. Hirsh, 310 Kan. 321, 338, 446 P.3d 472 (2019). Second, we agree with
Wilson that because he is challenging his probation revocation, not the imposition of the
prior sanctions, his claim is properly before this court. In State v. Clapp, 308 Kan. 976,
425 P.3d 605 (2018), the Kansas Supreme Court addressed a similar challenge to the
revocation of a defendant's probation on a second violation based on the district court's
erroneous imposition of a 180-day prison sanction for a first violation. The State argued
the appeal was moot because the defendant had served the 180-day sanction and did not
challenge it when it was imposed. Our Supreme Court disagreed, finding that the
defendant was challenging his probation revocation as "statutorily infirm" and that "[t]he
propriety of the district court's imposition of the 180-day sanction is germane to the

                                                    5
question of whether the district court had authority . . . to revoke probation." 308 Kan. at
987. The same reasoning applies here. Wilson is challenging the district court's authority
to revoke his probation based on its failure to follow the graduated sanctioning statute.
Thus, his claim is properly before this court.


       On the merits, Wilson relies on Clapp to support his argument that his probation
revocation was improper because the district court applied the intermediate sanctions out
of order. The State argues that Wilson's probation revocation was proper because,
regardless of the order the sanctions were imposed, Wilson received a 180-day
intermediate prison sanction and that is all that is required by the plain language of
K.S.A. 2016 Supp. 22-3716(c)(1)(E) before the district court could revoke his probation.


       This court reviews the propriety of the sanction for a probation violation imposed
by the district court for an abuse of discretion. State v. Coleman, 311 Kan. 332, 334, 460
P.3d 828 (2020). Judicial discretion is abused if the judicial decision (1) is arbitrary,
fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of
fact. State v. Gonzalez-Sandoval, 309 Kan. 113, 126-27, 431 P.3d 850 (2018). Wilson
argues the district court made an error of law by incorrectly applying the graduated
sanctioning scheme. When interpreting a sentencing statute, this court exercises unlimited
review. Coleman, 311 Kan. at 334-35.


       In Clapp, the district court imposed a 180-day sanction for Clapp's first violation
and then revoked his probation on his second violation. Clapp appealed, arguing the
district court improperly applied the graduated sanctioning scheme. When Clapp's appeal
was before this court, the panel agreed with the State's argument here, that under K.S.A.
2014 Supp. 22-3716(c)(1)(E) revocation was proper if the violator already had a prison
sanction imposed under (c)(1)(C) or (c)(1)(D). 308 Kan. at 986. But our Supreme Court
disagreed, stating the graduated sanctioning scheme must be read in pari materia and "[a]
sanction imposed 'pursuant to subsection . . . (c)(1)(D)' would, by the terms of that

                                                 6
provision, require that the 'violator already had a [jail] sanction imposed pursuant to
subsection (b)(4)(A), (b)(4)(B), (c)(1)(B) or (c)(1)(C).'" 308 Kan. at 986. Thus, our
Supreme Court rejected the argument the State makes here. Our Supreme Court then
stated:


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


          Wilson relies on this paragraph and the court's use of the phrase "condition
precedent" to support his argument that because the district court imposed a 180-day
sanction without the condition precedent of a previous jail sanction being imposed, his
180-day sanction was an "aberration." Wilson contends the only valid prior sanction he
received is the two-day jail sanction, which cannot support his probation revocation.


          While the court's "condition precedent" language would support Wilson's
argument when read in isolation, his interpretation is overbroad and disregards important
factual differences between his case and Clapp. Clapp challenged the revocation of his
probation on his second violation. During its discussion of the graduated nature of the
sanctioning scheme, our Supreme Court found that "[p]ermitting the district court to skip
steps in the graduated intermediate sanctions scheme would defeat the purpose of the

                                                       7
legislation." (Emphasis added.) 308 Kan. at 986. After summarizing the statute, the court
held that "[i]n short, pursuant to the statutory provisions of K.S.A. 2014 Supp. 22-
3716(c)(1), viewed as a whole, the district court did not have authority to revoke Clapp's
probation and impose his underlying sentence for a second probation violation."
(Emphasis added.) 308 Kan. at 987-88. Thus, the revocation in Clapp was improper
because the district court skipped the jail sanction and revoked Clapp on his second
violation, something that could not occur under the intermediate sanctioning scheme.


       Here, the district court revoked Wilson's probation for a third violation. While it is
correct the district court erred in imposing the 180-day prison sanction on Wilson's first
probation violation, he did not appeal that order. Wilson ultimately received both a jail
sanction and a prison sanction before the district court revoked his probation. Although
the steps were out of order, the district court did not completely skip any steps in the
scheme before revoking Wilson's probation. When reviewing the provisions of K.S.A.
2016 Supp. 21-3716(c)(1) together as they applied to Wilson's case, we find that Wilson
received the appropriate intermediate sanctions before the district court revoked his
probation on his third violation. Thus, we conclude the district court did not err in
revoking Wilson's probation on his third violation or, in the alternative, any error in
applying the sanctions out of order was harmless. See K.S.A. 2019 Supp. 60-261 (stating
the court will disregard all errors that do not affect any party's substantial rights).


Did the district court err in applying the dispositional departure exception?

       Wilson next asserts that the district court did not rely on the dispositional
departure exception at K.S.A. 2018 Supp. 21-3716(c)(9)(B) to revoke his probation, but
even if it did, then the district court erred because the application of that exception
retroactively amounts to an ex post facto violation. The State argues the district court
properly relied on the dispositional departure exception to revoke Wilson's probation
because the exception applies retroactively to Wilson's case.

                                               8
       Wilson is correct that the dispositional departure exception cannot be applied to
him because his crimes of conviction occurred almost a year before the dispositional
departure exception became effective. See Coleman, 311 Kan. at 337 (holding that the
dispositional departure exception applies "only to probationers whose offenses or crimes
of conviction occurred on or after July 1, 2017"). In any event, the district court did not
rely on the dispositional departure exception here. The district court did not mention the
exception at the hearing or in the journal entry. Thus, the district court did not and could
not rely on the exception to revoke Wilson's probation.


Did the district court err in revoking Wilson's probation for technical violations?

       Finally, Wilson argues that the district court unreasonably revoked his probation
for committing technical violations by testing positive for THC and failing to complete
drug treatment. The State argues that a reasonable person would agree with the district
court's decision to revoke Wilson's probation on his third violation in less than a year.


       As stated above, this court reviews the propriety of the sanction for a probation
violation imposed by the district court for an abuse of discretion. Coleman, 311 Kan. at
334. Judicial discretion is abused if the judicial decision is arbitrary, fanciful, or
unreasonable. Gonzalez-Sandoval, 309 Kan. at 126-27.


       Wilson violated his probation three times in less than a year. He continued to use
drugs and failed to complete treatment even though this was an important condition of his
probation. Thus, it cannot be said that no reasonable person would have agreed with the
district court's decision to revoke Wilson's probation.


       Affirmed.




                                               9
