                         NOT DESIGNATED FOR PUBLICATION

                                           No. 121,526


              IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                       STATE OF KANSAS,
                                           Appellee,

                                                 v.

                                ANTHONY LEE HUNTER FIELDS,
                                        Appellant.


                                 MEMORANDUM OPINION


       Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed August 7,
2020. Reversed and remanded with directions.


       Submitted by the parties for summary disposition pursuant to K.S.A. 2019 Supp. 21-6820(g) and
(h).


Before BUSER, P.J., HILL and WARNER, JJ.


       PER CURIAM: Anthony Lee Hunter Fields appeals a district court's order sending
him to prison after revoking his probation. We granted Fields' motion for summary
disposition under Supreme Court Rule 7.041A (2020 Kan. S. Ct. R. 47). Based on the
Kansas Supreme Court's recent decision in State v. Coleman, 311 Kan. 332, 460 P.3d 828
(2020), we reverse the order and remand to the district court for a new revocation
hearing.




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Fields made an agreement with the State.


       In 2017, Fields entered no contest pleas to one count of involuntary manslaughter
and one count of aggravated assault. With the severity level of the crimes and Fields'
criminal history score, he faced a presumptive prison sentence. But the State agreed not
to oppose Fields' request for a dispositional departure to probation. The court sentenced
him to serve a 64-month prison term but granted a dispositional departure sentence of 36
months' probation. Noting that it was "very reluctantly" following the plea agreement, the
district court warned Fields that if he "step[ped] foot in this courtroom for any violation,
it will be the court's intent to revoke [probation] because you will firmly establish that
you're not amenable to probation."


       Probation did not go well. In 2018, Fields admitted violating his probation by
failing to:
              • abstain from illegal drug use;
              • report to his intensive supervision office as directed;
              • start/complete court-ordered programs; and
              • address court fees.


Fields waived his right to a probation violation hearing and accepted a three-day jail
sanction.


       Then in 2019, seeking revocation of his probation, the State alleged that Fields had
again violated the terms of his probation by failing to:
              • comply with court-ordered mental health treatment;
              • submit to required urinalysis tests;
              • refrain from illegal drug use; and
              • gain/maintain employment.


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         Fields admitted missing two UA tests but disputed the remaining allegations. The
State presented testimony from Lashante Harris, Fields' probation supervisor. Harris
testified that Fields had failed to provide proof that he complied with any of the
recommendations following his mental health evaluation. Harris also testified that Fields
had failed to submit to UA testing on occasion and had submitted diluted UAs, which
meant they could not be tested. Harris requested that the district court impose a "tier-two"
sanction, otherwise known as an intermediate prison sanction.


         Fields also testified at the hearing. Fields said that he completed a mental health
evaluation and was told to follow up on his medication. According to Fields, he was
unaware of any prescription requirements and was later told that he did not need any
additional mental health services. Fields admitted he had not provided recent mental
health documentation to his supervisor. Fields also admitted that he had missed two UAs
but denied that he had diluted or otherwise tampered with them. Fields suggested that a
protein shake he consumed could have caused the dilution. Fields testified that he was
employed at a lawn service in Missouri and had recently secured housing for his family.


         The State agreed that a "tier-two" intermediate prison sanction would be
appropriate. Unimpressed with the recommendations, the district court revoked Fields'
probation and ordered him to serve his underlying prison sentence. In imposing Fields'
sentence, the district court expressed concern about Fields' lack of transparency about the
mental health recommendations and the allegations that Fields had diluted his UAs. The
court also noted its prior warning to Fields after it had reluctantly approved the parties'
joint sentencing recommendation. The judge reminded him of the serious nature of his
crime:


                 "This court [at sentencing] could not have made it any clearer to Mr. Fields how
         he had to do everything 100 percent. Zero tolerance. And I know I don't have the



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       transcript in front of me, but I know I spent a lot of time telling him how lucky he was to
       be walking out of that courtroom after having killed somebody . . . .
               ....
               Based on the dilutes and based on this court's very, very clear language to Mr.
       Fields, I'm not doing a tier two, I'm doing revocation. His probation is revoked."


With that, the court sent Fields to prison.


A recent Supreme Court ruling compels our reversal.


       In this appeal, Fields argues that the court had to impose an intermediate sanction
and could not legally send him to prison for his probation violations. Because of the
timing of the crime and the nature of his subsequent violations of probation, Fields is
correct.


       Our statute, K.S.A. 22-3716, sets out the procedure for revoking an offender's
probation. Under the version of the statute in effect when Fields committed his 2016
crimes, the district court was required to impose a series of graduated intermediate
sanctions before revoking Fields' probation and ordering him to serve his prison sentence.
These sanctions ranged from continuation or modification of the terms of probation to
brief periods of confinement in jail or longer periods of confinement in prison. The
sanctions gradually increased depending on the number of sanctions already imposed.
See K.S.A. 2016 Supp. 22-3716(c)(1)(A)-(D).


       Fields had received a three-day jail sanction. But the district court could bypass
intermediate prison sanctions only if (1) Fields committed a new crime or absconded
while on probation; or (2) the court stated particular reasons why imposing a sanction
would jeopardize public safety or Fields' welfare. See K.S.A. 2016 Supp. 22-3716(c)(8)-
(9). Fields did not commit a new crime or abscond while on probation. Nor did the
district court make any particularized findings that imposing a 120- or 180-day prison
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sanction would jeopardize public safety or Fields' welfare. Thus, under K.S.A. 2016
Supp. 22-3716, the district court's only option was to impose an intermediate prison
sanction.


       The Legislature, in 2017, amended K.S.A. 22-3716. It added language to the
statute that allowed the district court to bypass intermediate sanctions if a defendant had
received probation from a dispositional departure. See K.S.A. 2017 Supp. 22-
3716(c)(9)(B). And in 2019, the Legislature's amendment to K.S.A. 22-3716 eliminated
the 120- and 180-day prison sanctions. K.S.A. 2019 Supp. 22-3716(c)(1). Thus, under the
current version of the statute, a district court can revoke probation and impose the prison
sentence if the probationer has already served a two- or three-day jail sanction. K.S.A.
2019 Supp. 22-3716(c)(1)(C).


       Fields received a dispositional departure when he was originally sentenced. And
Fields had served a three-day jail sanction. Under either K.S.A. 2017 Supp. 22-3716 or
K.S.A. 2019 Supp. 22-3716, the district court was free to revoke probation and order
Fields to serve his prison sentence. But those revisions to the law are not retroactive and
do not apply to Fields.


       The question of which version of K.S.A. 22-3716 applies is resolved by our
Supreme Court's recent decision in State v. Coleman, 311 Kan. 332, 460 P.3d 828 (2020).
In Coleman, the State argued that the 2017 amendment to K.S.A. 22-3716 applied
retroactively to Coleman, who had committed his underlying crimes several years before
that amendment took effect. Because the 2017 amendment had no express retroactivity
language, however, the court held that the amendment applied prospectively and could
not be applied to probationers like Coleman, who committed their crimes before it took
effect on July 1, 2017. 311 Kan. at 337; see State v. Ratliff, No. 121,800, 2020 WL
2097488, at * 2 (Kan. App. 2020) (unpublished opinion). In Ratliff, we relied on
Coleman in holding that the 2019 amendment to K.S.A. 22-3716 eliminating the 120- and

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180-day prison sanctions applies prospectively only to probationers who committed their
underlying crimes after July 1, 2019.


       Under K.S.A. 2016 Supp. 22-3716, which was in effect when Fields committed
his offenses in August 2016, the district court was required to impose a 120- or 180-day
prison sanction before revoking Fields' probation and imposing his underlying prison
sentence. The district court's legal error in failing to correctly apply the statute constitutes
an abuse of discretion. See State v. Ballou, 310 Kan. 591, 615, 448 P.3d 479 (2019).


       As a result, we are required to reverse the district court's revocation of Fields'
probation and remand for a new revocation hearing.


       Reversed and remanded with directions.




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