State v. Hayes

1

NOT DESIGNATED FOR PUBLICATION

No. 119,165

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DEREK A. HAYES,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; SARA WELCH, judge. Opinion filed April 5, 2019. Affirmed.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before GREEN, P.J., SCHROEDER, J., and STUTZMAN, S.J.

PER CURIAM: Derek Allen Hayes appeals the revocation of his probation and
imposition of his original sentence. The record supports the district court's decision as
Hayes failed to comply with the conditions of probation after receiving a departure
sentence. However, the district court's second reason to revoke his probation failed to
state with particularity how Hayes remaining on probation would be a danger to himself
or the community. Given Hayes' failure to comply with probation after receiving a
departure sentence, this issue is now moot. We affirm.

2

FACTS

On March 10, 2016, Hayes pled guilty to distribution of THC. The district court
granted him a downward dispositional departure sentence of 68 months of imprisonment
with 36 months of probation. Hayes' probation conditions required him to report to his
probation officer as directed; not violate Kansas law or laws of any other state; pay court
costs at a rate of $50 per month starting July 6, 2016; and refrain from possessing or
consuming alcohol or other drugs.

The State moved to revoke Hayes' probation for failing to report as directed and
failing to pay any court costs. He stipulated to violating his probation based on both
allegations. Upon accepting his stipulation, the district court found Hayes violated his
probation and continued the hearing for disposition.

At Hayes' probation revocation disposition hearing, the State asked the district
court to revoke Hayes' probation under K.S.A. 2018 Supp. 22-3716(c)(9)(B) because the
court granted him a dispositional departure at sentencing and Hayes violated his
probation conditions. Hayes asked the district court to continue his probation conditioned
on him completing drug treatment because he did not believe he would be able to address
his drug use in prison. The record also reflects while on probation, Hayes was convicted
in Missouri of fleeing and eluding police.

The district court revoked Hayes' probation, finding Hayes:

 Violated his probation.
 Received a downward dispositional departure at sentencing.
 Was convicted in Missouri while on probation for fleeing and eluding
police.
3

 Stipulated to violating his probation.

The district court stated: "[Hayes] was given probation when he, by the sentencing
guidelines, should've been in prison, and then goes out and commits a new crime, one
that puts the public at risk while on this probation. I think sufficient resources have been
expended on Mr. Hayes." In the journal entry revoking Hayes' probation, the district
court noted it did not grant intermediate sanctions because "[defendant was] granted
departure and community safety."

ANALYSIS

K.S.A. 2018 Supp. 22-3716(c)(9)(B) applies

Hayes claims the district court should have imposed intermediate sanctions instead
of revoking his probation. Hayes did not object to the district court's use of the
dispositional departure sentence at the revocation hearing, but this court may reach the
issue on appeal because this argument involves only a question of law and is
determinative of the case. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).
The decision to revoke probation rests in the sound discretion of the district court when
there is evidence to support a probation violation. State v. Gumfory, 281 Kan. 1168, 1170,
135 P.3d 1191 (2006). The appellate court reviews the district court's decision to revoke
probation for an abuse of discretion. See State v. Brown, 51 Kan. App. 2d 876, 879, 357
P.3d 296 (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). The party asserting an abuse of discretion bears the burden of establishing it.
State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).
4

An offender who violates his or her probation must first be granted an
intermediate sanction unless an exception applies. K.S.A. 2018 Supp. 22-3716(c). Hayes'
journal entry of probation revocation provides the district court relied on two of these
exceptions: the dispositional departure sentence and public safety exceptions. Hayes
primarily argues the court erred as a matter of law because the dispositional departure
exception should not apply to him due to this exception being added to the statute
effective July 1, 2017, after he was placed on probation. Hayes argues the statutes should
not operate retroactively unless the Legislature clearly indicated it was to act retroactive.

The dispositional departure exception allows the district court to revoke probation
without previously imposing an intermediate sanction if the sentencing court originally
granted probation as the result of a dispositional departure. K.S.A. 2018 Supp. 22-
3716(c)(9)(B). The Kansas Legislature enacted this exception on July 1, 2017, several
months after Hayes began probation. See L. 2017, ch. 92, § 8; K.S.A. 2018 Supp. 22-
3716(c)(9)(B).

In State v. Anzek, No. 118,461, 2018 WL 5851517, at *1 (Kan. App. 2018)
(unpublished opinion), another panel of this court found K.S.A. 2017 Supp. 22-
3716(c)(9)(B) inapplicable if a defendant's probation violation occurred before this
amendment went into effect. In discussing probation sanctions from 2013, this court
stated: "[T]he law that applies to the imposition of sanctions for violating probation is the
law that existed when a defendant violated probation, not the law that existed when the
defendant committed the underlying crime . . . nor the law in effect when the probation
hearing occurred." State v. Kurtz, 51 Kan. App. 2d 50, 56, 340 P.3d 509 (2014).
Moreover, "the critical date for determining when the amendment applies is the date the
defendant violated his or her probation." 51 Kan. App. 2d at 56-57. We agree with this
analysis. Because the date of a defendant's violation controls the application of K.S.A.
2018 Supp. 22-3716(c)(9)(B), we must look at when Hayes violated his probation.
5

Although violation dates are not explicitly stated in the record, we can determine
the violations occurred after the amendment's enactment. K.S.A. 22-3716(c)(9)(B)
became effective on July 1, 2017. See L. 2017, ch. 92, § 8. Hayes' probation conditions
required him to pay $50 monthly toward his court costs. The district court issued a bench
warrant alleging Hayes violated his probation on December 20, 2016, and the State filed
multiple motions to revoke Hayes' probation with the last one filed on January 19, 2018,
again alleging, among other violations, Hayes failed to make any payments toward his
court costs and failed to report as directed. Hayes stipulated to violating his probation on
those two conditions. Thus, the record reflects Hayes did not make his monthly $50 court
cost payments between July 2017 and January 2018. Accordingly, Hayes' violations
occurred after the statute's effective date and the district court did not err in using K.S.A.
2018 Supp. 22-3716(c)(9)(B) to revoke Hayes' probation. We find the district court did
not abuse its discretion when it revoked Hayes' probation under K.S.A. 2018 Supp. 22-
3716(c)(9)(B) and imposed his original sentence for failing to report and failing to make
any payments while on supervised probation on a downward departure sentence.

Public safety

Hayes also claims the district court erred when it revoked his probation after
determining he posed a risk to public safety. In light of State v. Clapp, 308 Kan. 976,
988-90, 425 P.3d 605 (2018), we agree with Hayes' argument the district court's
revocation of his probation for public safety lacked particularity. Given the support in the
record for revoking him under K.S.A. 2018 Supp. 22-3716(c)(9)(B), this argument is
moot.

Affirmed.