State v. McFeeters

No. 112,784

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

DENNIS L. MCFEETERS, JR.,

Appellant.

SYLLABUS BY THE COURT

1.

According to K.S.A. 2014 Supp. 22-3716(c)(9), a sentencing court need not

impose intermediate sanctions if it finds and sets forth with particularity reasons that the

safety of the public will be jeopardized or that the welfare of the offender will not be

served by such sanctions.

2.

When the law requires a court to make findings and state them with particularity,

the findings must be distinct rather than general, giving exact descriptions of all details.

3.

Implicit findings by a court are insufficient when particularized findings are

required by statute. On review, an appellate court will refrain from substituting its

inferences for the district court's legally required explanations.

4.

The district court, when seeking to avoid intermediate sanctions, 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.

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Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed November 6,

2015. Vacated and remanded with directions.

Peter Maharry, of Kansas Appellate Defender Office, for appellant.

Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt,

attorney general, for appellee.

Before HILL, P.J., PIERRON and ARNOLD-BURGER, JJ.

HILL, J.: Dennis McFeeters, Jr., admitted to the district court that he had violated

certain conditions of his probation order. The court revoked his probation and sent him to

prison. While we agree with the district court that his probation was ripe for revocation,

the trouble we have with the court's order is that it did not set forth with particularity why

an intermediate sanction, normally imposed in such a situation, was inappropriate here.

The law, K.S.A. 2014 Supp. 22-3716(c)(9), requires such findings. Therefore, we must

remand the matter to the district court for a new dispositional hearing.

McFeeters received probation after pleading guilty to a drug crime.

In February 2014, McFeeters pled guilty to possession of methamphetamine. The

district court suspended McFeeters' 20-month prison term and placed him on probation

for 18 months. The court ordered McFeeters to comply with various conditions of the

community corrections intensive supervision program, including drug and alcohol

treatment.

After the State moved to revoke his probation, McFeeters initially admitted that he

had failed to report as required by his probation terms. The record also reveals that the

affidavit from McFeeters' probation officer, Trenton James, indicated that to encourage

McFeeters to comply with the terms and conditions of his probation, James had already

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given McFeeters a 3-day "Quick Dip" in jail for an earlier violation and, on several dates,

James had instructed McFeeters to make contact with his treatment provider.

James testified that McFeeters' actions while on probation caused him to fear for

the safety of those in the community and McFeeters' own safety. James described

receiving a phone call from McFeeters' proprietor within 24 hours of McFeeters

acquiring housing, asking James to have McFeeters physically removed because

McFeeters was becoming possessive about the property and was harassing the staff.

McFeeters' landlord also talked with James within the ensuing 48 hours, telling

James that she had a video recording of McFeeters damaging property. James advised the

landlord to contact the police and file a report. James also stated that he could not provide

the community with a safe atmosphere because McFeeters refused to go to drug

treatment, refused to attend required office visits, had several positive urinalysis tests that

were not included in the show-cause motion, and did not stay at any address he provided

to James.

At a later revocation hearing, McFeeters agreed that he did have at least one

positive urinalysis test but argued he was still amenable to further probation. He

requested reinstatement of probation or, in the alternative, an intermediate sanction of

120 or 180 days' incarceration. The district court disagreed, finding that "public safety or

offender welfare" would not be served by another sanction.

The court revoked probation.

The district judge explained why she revoked probation:

"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

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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, you may have had more, I don't know how many you

had. That was one question I was going to ask Mr. James, unfortunately, he is not here

today, but you stopped reporting in two months. I don't know about the drug treatment

and what was set up and whether you could get in right away or not, but it seems to me if

you had been on probation before, you knew what you needed to do, you did not do that,

you picked up another charge in the meantime, albeit a minor charge, apparently, the

municipal court charge, but I do have concerns. I read through last night your LSI-R

report and the substance abuse evaluation and I think there 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."

The district court ordered McFeeters to serve 20 months in prison. In the journal

entry, the district court found that McFeeters did not attempt to go to treatment, he had

been on probation before, he was charged with another crime, and the probation officer

did not feel he could adequately supervise McFeeters.

The law of probation revocation is well settled.

Once there is evidence of a probation violation, the decision to revoke probation

rests within the sound discretion of the district court. See State v. Skolaut, 286 Kan. 219,

227-28, 182 P.3d 1231 (2008). Judicial discretion is abused if the action is (1) arbitrary,

fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact.

Fischer v. State, 296 Kan. 808, Syl. ¶ 8, 295 P.3d 560 (2013). McFeeters bears the

burden of showing such an abuse of discretion. See State v. Stafford, 296 Kan. 25, 45,

290 P.3d 562 (2012). Moreover, whether the district court properly imposed a sentence

after revoking McFeeters' probation invokes a question of law over which an appellate

court exercises unlimited review. See State v. Sandberg, 290 Kan. 980, 984, 235 P.3d 476

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(2010). Likewise, our review is unlimited to the extent that resolution of this issue

requires statutory interpretation. See State v. Dale, 293 Kan. 660, 662, 267 P.3d 743

(2011).

Other than asking this court to reweigh the evidence presented at the revocation

hearing, McFeeters does not point to any errors of fact or law made by the district court.

In light of McFeeters' stipulation to violating some of the conditions of his probation and

the absence of any good reason in the record for concluding the district court's decision

was arbitrary, fanciful, or unreasonable, we hold the district court was well within its

discretion to revoke McFeeters' probation. The remaining question on appeal concerns

the district court's decision ordering McFeeters to serve his prison sentence.

A sentencing court must make particular findings.

McFeeters had already received a 3-day intermediate sanction under K.S.A. 2014

Supp. 22-3716(c)(l)(B) for a criminal trespass citation. This was the charge the court

referred to in the journal entry. Thus, before imposing McFeeters' underlying sentence

the district court was required to impose either an 120- or 180-day sanction found in

K.S.A. 2014 Supp. 22-3716(c)(l)(C) or (D), unless the district court's remarks at

McFeeters' revocation hearing were sufficient to invoke the exceptions found in K.S.A.

2014 Supp. 22-3716(c)(9). That statute permits the court to not impose intermediate

sanctions if it "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." K.S.A. 2014 Supp. 22-3716(c)(9).

In an earlier case, this court has clarified that "[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." State v.

Huskey, 17 Kan. App. 2d 237, Syl. ¶ 2, 834 P.2d 1371 (1992). Further, implicit findings

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are insufficient when particularized findings are required by statute. State v. Miller, 32

Kan. App. 2d 1099, 1102-03, 95 P.3d 127 (2004).

In discussing the particularity required for K.S.A. 2014 Supp. 22-3716(c)(9), we

recently clarified that the district court seeking to invoke the exceptions must explicitly

address how the public's safety would be jeopardized or how the offender's welfare would

not be served by imposition of the intermediate sanctions. State v. Lane, No. 111,110,

2015 WL 802739, at *4 (Kan. App. 2015) (unpublished opinion).

The remarks made by the district court at McFeeters' revocation simply repeat 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. The

law has changed. Simply stated, the district court's conclusory remarks about McFeeters'

apparent unwillingness or inability to conform his behavior to the requirements of

probation fail 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 under K.S.A. 2014 Supp. 22-3716(c)(1).

As it stands now, any such relationship between the district court's findings and

either of the exceptions under K.S.A. 2014 Supp. 22-3716(c)(9) would need to be

implied. Implicit findings are insufficient. Miller, 32 Kan. App. 2d at 1102-03. We will

refrain from substituting our inferences for the district court's legally required

explanations. Therefore, we conclude the district court's findings were not set forth with

particularity as required by K.S.A. 2014 Supp. 22-3716(c)(9).

We vacate the order sending McFeeters to prison and remand his case to the

district court for a new dispositional hearing. At that hearing, the district court could

either impose an intermediate sanction under K.S.A. 2014 Supp. 22-3716(c)(l)(C) or (D)

or, in the alternative, set forth with particularity its reasons for invoking the exceptions

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under K.S.A. 2014 Supp. 22-3716(c)(9) prior to ordering him to serve his prison

sentence.

Vacated and remanded with directions.

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