State v. Anzek

1

NOT DESIGNATED FOR PUBLICATION

No. 118,461

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

LANDON ALAN ANZEK,
Appellant.


MEMORANDUM OPINION


Appeal from Johnson District Court; THOMAS KELLY RYAN, judge. Opinion filed November 9,
2018. Vacated and remanded with directions.

Sam Schirer, 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 ATCHESON, P.J., HILL, J., and STUTZMAN, S.J.

PER CURIAM: Landon Anzek appeals the revocation of his probation and
imposition of his prison sentence. Because the court did not make particularized findings
as required under K.S.A. 2015 Supp. 22-3716(c)(9), we remand to the district court for a
new dispositional hearing.

The parties agree that the court erred by ruling it could bypass intermediate
sanctions under K.S.A. 2017 Supp. 22-3716(c)(9)(B) because Anzek had received a
2

departure sentence. After all, the statutory amendment permitting a bypass of
intermediate sanctions in cases where the defendant received a departure sentence did not
go into effect until after Anzek violated his probation and was thus inapplicable.

This appears to be a straightforward conviction and sentencing.

In accordance with a plea agreement, Anzek pleaded guilty to burglary, criminal
use of a financial card, and two counts of theft. Because his criminal history score was A,
Anzek faced a presumptive prison sentence. But the State recommended a dispositional
departure to probation as part of the plea agreement. The court sentenced Anzek to 32
months in prison, but it granted the dispositional departure and placed him on probation
for 24 months. With Anzek's consent, the court, in January 2015, extended his probation
term for one year.

Then, in April 2015, the State asked the court to revoke Anzek's probation alleging
that he failed to report on several days, failed to make any payments on his court-ordered
costs, and used alcohol and drugs. Anzek stipulated to violating his probation and the
district court imposed a three-day "quick dip" jail sanction.

Once again, this time in December 2015, the State sought to revoke Anzek's
probation, alleging that he violated the conditions of his probation by:
 failing to attend a preemployment class or meet with his intensive
supervision officer as scheduled;
 failing to attend therapy classes;
 failing to pay court fines/fees since July 2015;
 failing to report for drug and alcohol testing;
 testing positive for using amphetamine, methamphetamine, and cocaine.

3

When the court held its revocation hearing, Anzek stipulated to violating the
conditions of his probation. When the court asked for recommendations on disposition,
defense counsel said:

"Judge, this is kind of a complicated one. I don't know if requesting
reinstatement, frankly, makes a lot of sense in this case because my client is going to be a
guest to the Kansas Department of Corrections for several years, so even if the Court did
revoke and reinstate his probation, he's going to come back here again on a failure to
report ultimately.
"So to me the resolution that I would ask for is for the Court to consider a
sentence modification to reduce his sentence by six months. . . .
. . . .
"The allegations that he's stipulated to are serious ones, but they are still technical
violations. I know the State is likely to take the position that there have been some
changes recently in Kansas law that . . . even on technical violations . . . if the person was
initially presumed for prison . . . and got probation, then we might not necessarily be
looking at intermediate sanctions.
"I'm not conceding to that argument, but I know that you're going to hear that. In
either event, I would still draw to the Court's attention that these are technical violations.
. . . .
". . . 26 months is still a long time, and that's what we're asking for."

For the State's part, the prosecutor noted that Anzek had recently been convicted
of aggravated robbery and that was why he was currently in custody. But because he
committed this new crime outside the term of probation, it was not considered a violation
of his probation. The State asked that the court use a recent statutory change to bypass
intermediate sanctions and find that it was not in Anzek's or the community's best
interests for his probation to continue.

After hearing this, the court ruled that Anzek should go to prison:

4

"Mr. Anzek, this has been going on a long time, back more than two years now.
While they're technical violations, it's not a basis for your revocation, your stipulation
here today, clearly you continued using drugs.
"You had a dip. Ms. Weaver worked with you trying to give you the opportunity
to better yourself back then. You further spiral[]ed, it sounds like, at that point going
forward with the aggravated robbery case out of Wyandotte County.
"I believe that you're probably a good example of what the legislature was doing
when they amended the statute. When it's both public safety concern, not amenable to
probation, I don't see where any of that is going to benefit the community or benefit you.
"You just need to do your time. I'm not going to reinstate. I'm not going to
modify your sentence. You just need to serve your sentence as previously imposed for
those reasons."

The court revoked Anzek's probation and imposed his prison sentence. On the journal
entry, the court commented that "due to previous departure, intermediate sanctions are
bypassed." Anzek timely appeals.

A review of the law is helpful at this point.

K.S.A. 2015 Supp. 22-3716(c) limits the discretion of a court in deciding how to
sanction a probation violator. The statute provides that a sentencing court should impose
a series of intermediate, graduated sanctions before ordering a probation violator to serve
his or her underlying sentence, unless some exceptions apply. For example, the district
court need not impose any intermediate sanction if the offender "commits a new felony or
misdemeanor or absconds from supervision while the offender is on probation" or if the
court "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. 2015 Supp. 22-3716(c)(8), (c)(9).

Effective July 1, 2017, the Legislature amended the statute, adding another
exception. The exception permits courts to bypass the intermediate sanctions if the
5

offender was originally granted probation as the result of a dispositional departure
granted by the sentencing court. K.S.A. 2017 Supp. 22-3716(c)(9)(B).

The sentencing court needed to do more.

Anzek had already served a three-day "quick dip" sanction under K.S.A. 2015
Supp. 22-3716(c)(1)(B) for prior probation violations. Thus, according to the statute,
before imposing Anzek's underlying sentence, the district court had to impose either a
120- or 180-day sanction under K.S.A. 2015 Supp. 22-3716(c)(1)(C) or (D), or apply one
of the statute's exceptions under K.S.A. 2015 Supp. 22-3716(c)(9).

As we have noted, the parties agree that the district court erred by ruling that it
could bypass intermediate sanctions under K.S.A. 2017 Supp. 22-3716(c)(9)(B). Even so,
the parties disagree about what should be done here.

The State makes two arguments: (1) Anzek invited the error and (2) the court
made findings that the public's safety and Anzek's welfare would not be served by
reinstating his probation. Anzek responds that the invited error rule does not apply
because: (1) he asked the court to impose a reduced sentence, which the court did not do;
and, (2) the invited error rule does not apply to imposition of a legally unauthorized
sentence. Anzek also responds that the court did not make particularized public safety or
offender welfare findings.

It is fundamental law that a litigant may not invite error and then complain of the
error on appeal. State v. Verser, 299 Kan. 776, 784, 326 P.3d 1046 (2014). Whether the
doctrine of invited error applies here presents a question of law, and appellate courts
generally exercise unlimited review over questions of law. State v. Hankins, 304 Kan.
226, 230, 372 P.3d 1124 (2016).

6

For his view on this fundamental point, Anzek cites State v. Dickey, 301 Kan.
1018, 1027-32, 350 P.3d 1054 (2015), contending that the invited error doctrine does not
apply to legally unauthorized sentences. In that case, our Supreme Court held an offender
could not invite an illegal sentence. See 301 Kan. at 1032. But some panels of this court
have rejected the argument that a violation of K.S.A. 22-3716 results in an illegal
sentence. See, e.g., State v. Horton, No. 115,051, 2016 WL 5867237, at *2-3 (Kan. App.
2016) (unpublished opinion), aff'd 308 Kan. 757, 760, 423 P.3d 548 (2018). That said, at
least one panel of this court has applied the invited error doctrine in the probation
revocation context. See State v. Stofanik, No. 116,892, 2017 WL 3203422, at *2 (Kan.
App. 2017) (unpublished opinion).

But we need not decide here whether the invited error doctrine applies. Simply
put, Anzek invited the court to impose a prison sentence, but he did not necessarily invite
the statutory interpretation error the court made. Anzek's attorney specifically stated that
he was not conceding that the 2017 statutory amendment applied. The court could have
made particularized findings that Anzek's welfare would not be served by probation or
that public safety would be jeopardized by the continuation of probation. And Anzek
asked for a reduction in his prison sentence, which the court denied.

We have explained the particularity requirement in State v. McFeeters, 52 Kan.
App. 2d 45, 362 P.3d 603 (2015). As mentioned, the district court needed to "set 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" intermediate
sanctions. K.S.A. 2015 Supp. 22-3716(c)(9). 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. 52 Kan. App. 2d 45, Syl. ¶ 2. Implicit
findings are insufficient when particularized findings are required by statute. We cannot
substitute our inferences for the district court's legally required explanations.

7

A court making findings under K.S.A. 2015 Supp. 22-3716(c)(9) must explicitly
state "how" the public's safety would be jeopardized or "how" the offender's welfare
would not be served by intermediate sanctions. McFeeters, 52 Kan. App. 2d. 45, Syl. ¶¶
3-4. This is where the district court erred.

Because the court relied on K.S.A. 2017 Supp. 22-3716(c)(9)(B), it did not explain
how public safety would be jeopardized or how Anzek's welfare would not be served by
an intermediate sanction. The court merely mentioned the term "public safety" and said
that reinstatement of Anzek's probation would not be a "benefit" to him. Any connection
between the court's findings and either of the exceptions under K.S.A. 2015 Supp. 22-
3716(c)(9) would need to be implied. As we said before, we cannot substitute our
inferences for the district court's legally required explanations.

We vacate the order imposing Anzek's prison sentence and remand to the district
court for a new dispositional hearing. At the hearing, the district court can either impose
an intermediate sanction or set forth with particularity its reasons for invoking the
exceptions under K.S.A. 2015 Supp. 22-3716(c)(9).

Vacated and remanded with directions.