                           NOT DESIGNATED FOR PUBLICATION

                                              No. 120,986

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                           STATE OF KANSAS,
                                               Appellee,

                                                    v.

                                     ERIC S. WHITEHEAD-KING,
                                             Appellant.


                                    MEMORANDUM OPINION

        Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed June 5, 2020.
Reversed and remanded with directions.


        Sam Schirer, of Kansas Appellate Defender Office, for appellant.


        Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.


Before ATCHESON, P.J., WARNER, J., and WALKER, S.J.


        PER CURIAM: Eric S. Whitehead-King appeals from the district court's decision to
override a three-day jail sanction imposed by his community corrections officer and
instead impose a 36-month extension of Whitehead-King's probation. Because we believe
the district court exceeded its authority by its actions, we reverse and remand for revision
of his probation orders.




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                                           FACTS

       On January 9, 2014, Whitehead-King pled guilty to one count of trafficking
contraband in a correctional institution. On March 5, 2014, the district court sentenced
Whitehead-King to 120 months in prison but granted a dispositional departure to a 36-
month probation term with community corrections.


       On April 6, 2016, the district court issued a warrant alleging that Whitehead-King
committed several probation violations. Specifically, the warrant alleged that Whitehead-
King failed to pay court costs and restitution as directed, he tested positive for cocaine in
December 2015, he failed to provide proof of employment to his intensive supervision
officer (ISO) after being released from custody in June 2015, he committed a new
domestic battery crime in January 2016, he failed to report to his ISO on two separate
occasions, and he failed to report to submit urinalysis samples on two different occasions.


       At the probation violation hearing on August 2, 2016, the State withdrew the
domestic battery allegation and Whitehead-King admitted to all the remaining allegations
in the warrant. The district court found that Whitehead-King violated his probation.
However, the court reinstated Whitehead-King's probation, extending it an additional 36
months from the date of the hearing.


       The district court issued a second warrant on November 29, 2017, alleging that
Whitehead-King violated his probation once again. The warrant specifically alleged that
Whitehead-King committed two new firearms offenses in June 2017. The State later
withdrew the warrant on March 20, 2018.


       On July 17, 2018, Whitehead-King stipulated that he violated his probation when
he tested positive for cocaine earlier that month. He agreed to waive his right to a
probation violation hearing and to serve a two-day jail sanction as a result of the


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violation. Whitehead-King's signed waiver and consent was filed with the district court
on July 20, 2018.


       On September 17, 2018, Whitehead-King yet again stipulated that he violated his
probation. Specifically, he admitted that he failed to maintain full-time employment as
directed by the district court. He agreed to waive his right to a probation violation hearing
and agreed to serve a three-day jail sanction. Notably, the signed waiver and consent,
which was approved by a district judge, was not filed with the district court until
October 10, 2018.


       On October 2, 2018, eight days before the signed waiver and consent was filed,
the district court issued another warrant alleging that Whitehead-King violated his
probation. The warrant specifically alleged that Whitehead-King failed to maintain full-
time employment and that he committed a new domestic battery offense in September
2018. Whitehead-King's ISO later stated that he drafted the warrant after discovering the
new domestic battery offense. The ISO included in the warrant the previously stipulated
violation regarding Whitehead-King's failure to maintain employment because he learned
that Whitehead-King never served his three-day jail sanction. On October 6, 2018,
Whitehead-King was arrested on the October 2 warrant. He was released from jail on
October 19, 2018.


       On March 14, 2019, the district court held a probation violation hearing on the
October 2 warrant. Notably, the State withdrew the allegation about the new domestic
battery charge and asked to proceed only on the failure to maintain employment
allegation. Whitehead-King's counsel argued that Whitehead-King could not be
sanctioned again for this allegation because he previously stipulated to it in September
2018 and served the three-day sanction. Specifically, Whitehead-King argued that he
showed up to his ISO's office on October 6, 2018, believing he was voluntarily
submitting himself to serve the jail sanction. However, the State argued that Whitehead-


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King never reported to serve his three-day jail sanction. Rather, he was informed of the
October 2 warrant and was arrested on the warrant when he appeared at his ISO's office
on October 6.


       The district court determined that Whitehead-King waived a probation violation
hearing as to the failure to maintain employment allegation and that he admitted to the
violation. As a result, the court found by a preponderance of the evidence that
Whitehead-King violated his probation. The court imposed a two-day jail sanction but
gave Whitehead-King credit for time served. The district court further revoked and
reinstated his probation for an additional 36 months from the date of the hearing.
Whitehead-King timely appeals the district court's decision to extend his probation.


                                          ANALYSIS

       When we must determine 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. Hurley, 303 Kan. 575, 580, 363 P.3d 1095
(2016). A district court abuses its discretion if it bases its decision on an error of law or
fact or if no reasonable person would agree with the district court's decision. State v.
Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015). A party alleging an abuse of
discretion bears the burden of showing that the district court abused its discretion. State v.
Rojas-Marceleno, 295 Kan. 525, 531, 285 P.3d 361 (2012).


       In order for us to evaluate the district court's decision to revoke probation or
impose a probation violation sanction, it is necessary to interpret any relevant probation
sanction statutes. Interpretation of a statute is a question of law over which this court has
unlimited review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).




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       Whitehead-King argues that the district court abused its discretion when it
extended his probation for 36 additional months. Specifically, he asserts that on
September 17, 2018, he stipulated that he violated his probation by failing to maintain
employment and agreed to serve a three-day jail sanction for that violation. Whitehead-
King contends that the waiver of a probation violation hearing and consent to serve a jail
sanction which he signed acted as a final order that was binding on him and, thus, the
district court lacked the authority to impose another sanction on him for the same
probation violation to which he previously stipulated. Thus, he claims that the district
court committed an error of law, exceeding its authority, by further sanctioning him for
the employment violation.


       The State argues that Whitehead-King never served the three-day jail sanction as
directed and, thus, the violation to which he stipulated on September 17 was still
outstanding as of October 2, 2018, when the warrant was issued. It further contends that
when Whitehead-King was arrested on October 6, 2018, it was on the two allegations
contained in the warrant, not as a result of Whitehead-King's voluntary submission.
Because the only evidence before the district court was that Whitehead-King never
served his three-day sanction and that he was arrested on October 6 as a result of the
warrant, the State claims that the district court had the authority to extend his probation.


       Thus, the State's heavy focus is on the fact that Whitehead-King never actually
served the three-day sanction called for in the stipulated agreement. But we note from the
stipulation document that no date certain was set for Whitehead-King to submit himself
to jail. Likewise, a careful review of the ISO's testimony at the probation violation
hearing held May 14, 2019, does not indicate whether he had been given a particular date
or even a deadline to report to jail. Perhaps Whitehead-King and his ISO had some
informal agreement as to when he would serve the three days, but there is nothing in the
record to suggest this. In fact, it might have even been possible for the State to charge
Whitehead-King with failing to report to jail in accordance with his stipulation as a new


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probation violation. But that was not done here. And since the State later dropped the
domestic battery allegation, it becomes legally irrelevant. Therefore the only remaining
issue is what sanctions were legally available for Whitehead-King's failure to maintain
employment.


       K.S.A. 2018 Supp. 22-3716, the version of the statute in effect at the time
Whitehead-King violated his probation, dictates the available sanctions for a probationer
who violates the terms of his or her probation. K.S.A. 2018 Supp. 22-3716(b)(4)(B)
provides that a probationer's community corrections officer (ISO) may impose a 48- or
72-hour stint in a county jail as an intermediate sanction for a probation violation. A
separate section, K.S.A. 2018 Supp. 22-3716(c)(1)(B), provides that the court may also
modify probation terms and impose a 48- or 72-hour stint in a county jail as a sanction
for a probation violation. Implicit in K.S.A. 2018 Supp. 22-3716's graduated sanction
scheme is the commission of a new violation after the defendant had served the previous
sanction. See State v. Clapp, 308 Kan. 976, 984, 425 P.3d 605 (2018); State v. Henson,
No. 119,257, 2019 WL 2398042, at *3 (Kan. App. 2019) (unpublished opinion)
("Implicit in the graduated sanction statutory scheme is the commission of a new
violation after the defendant had served the previous sanction.").


       At the probation violation hearing of March 19, 2019, the district court found that
the stipulated disposition between Whitehead-King and his ISO, rather than being a
completed probation violation proceeding, was legally the same as a plea
recommendation between the State and a criminal defendant—a suggested disposition
that the district court could accept or reject in its discretion. In Whitehead-King's case,
the district court decided it would not follow the stipulation and imposed a two-day
sanction with credit for time served and a 36-month extension of probation.


       In challenging the district court's decision to impose a new sanction for probation
violation, Whitehead-King relies heavily on our court's ruling in Henson. In Henson, just


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as here, the defendant waived her right to a probation violation hearing and stipulated to
violating her probation. She agreed to serve a two-day jail sanction for the violation. The
same day the defendant turned herself in to serve her sanction, the State filed a motion to
revoke her probation for a similar type of violation to which she had already stipulated
and for which she already began serving her time. The district court ultimately found that
she violated her probation as alleged in the State's motion to revoke and imposed a new
180-day intermediate sanction. On appeal, a panel of our court vacated the sanction,
holding that a court may only impose graduated sanctions pursuant to K.S.A. 2018 Supp.
22-3716 once a probationer has served a previous probation violation sanction and then
committed a new probation violation. 2019 WL 2398042, at *3.


       The obvious difference between the facts in Henson and those in our case is that
Henson had actually served her jail sanction when the State sought to revoke her
probation, and Whitehead-King had not yet served the sanction. But we do not view that
distinction as critical to the outcome here. As we have noted, no specific date or time was
set out in the stipulation for Whitehead-King to begin serving the jail sanction. If he
failed to report after having been given notice of a date to report to jail, or after a
reasonable time elapsed, that might support a separate probation violation allegation with
a potential independent sanction. But that did not happen here.


       The probation violation dealt with by the ISO resulting in the September 17, 2018
waiver, stipulation, and agreed sanction and the proceedings before the district court on
March 14, 2019, plainly dealt with the same alleged violation, i.e., failure to maintain
gainful employment. The State suggests that the violation was a continuing one, in other
words that Whitehead-King's conduct represented a historical and ongoing pattern of
failing to do something positive to remedy his employment situation, as distinguished
from a singular and discrete violation. But our review of the record indicates that the
parties and the district court treated the stipulated violation dated September 17, 2018,
and the allegations in the new warrant as essentially one and the same violation. And our


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conclusion is buttressed by the way the district court handled the violation—it held that
the sanction agreed upon by the ISO and Whitehead-King was merely a recommendation
to the court as to the disposition of the violation.


       We believe the legal flaw in the district court's determination is its treatment of the
stipulation with its agreed sanction as a mere suggestion to the court. Instead, we construe
a stipulation and waiver with an agreed sanction under K.S.A. 2018 Supp. 22-
3716(b)(4)(B) as a binding disposition which necessarily controls the covered probation
violation and precludes any judicial intervention, review, or approval. The explicit
language of the statute provides that if the defendant waives the right to a hearing, the
two- or three-day sanctions may be imposed by the ISO "without further order of the
court." K.S.A. 2018 Supp. 22-3716(b)(4). Oversight is limited to approval by the
supervising community corrections officer in the district. Basically, these limited
sanctions are a self-contained administrative remedy for probation violations that
function without judicial involvement. That is clearly the legislative design.


       Accordingly, we hold that the district court lacked authority to supersede the
stipulated disposition of Whitehead-King's probation violation for failing to maintain
gainful employment in September 2018. He received a three-day jail sanction for that
violation by agreement consistent with K.S.A. 2018 Supp. 22-3716(b)(4)(B), and that is
all he can receive. We hold that the district court abused its discretion by imposing the 36
months' additional probation extension on Whitehead-King.


       Reversed and remanded with instructions to vacate the 36-month probation
extension.




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