State v. Liby

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NOT DESIGNATED FOR PUBLICATION

Nos. 118,834
118,835

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JERRY ALLEN LIBY,
Appellant.


MEMORANDUM OPINION

Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed December 7, 2018.
Affirmed.

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

Anna M. Jumpponen, assistant county attorney, Ellen Mitchell, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before POWELL, P.J., ATCHESON and GARDNER, JJ.

PER CURIAM: Jerry Liby appeals from the district court's revocation of his
probation, contending that the district court lacked the authority to incarcerate him
without first having imposed intermediate sanctions. Finding no error, we affirm.




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Factual and procedural background

Two cases underlie this appeal. Liby pleaded no contest to felony domestic battery
in 15 CR 1185. In March 2016, the district court sentenced him to 12 months of probation
with an underlying prison sentence of 12 months.

In August 2017, Liby pleaded no contest to aggravated battery in case 16 CR 621.
Liby's presentence investigation report showed he had a criminal history score of A. On
October 30, 2017, the district court granted Liby's motion for dispositional departure and
sentenced him to 18 months of probation with an underlying 21-month prison sentence.
As a result of that case, Liby stipulated to having violated his probation in 15 CR 1185,
so the court imposed a 14-day jail sanction and extended his probation for 18 months.

On November 6, 2017, the State moved to revoke Liby's probation, alleging that
Liby had violated the terms of his probation for cases 15 CR 1185 and 16 CR 621 by the
following acts: not reporting to his probation officer, failing to maintain employment,
consuming alcohol, not complying with sanction imposed by his probation officer, and
failing to obtain a drug and alcohol evaluation. On November 28, 2017, the court found
that Liby had violated his probation in both cases so it revoked his probation in both
cases and ordered him to serve his underlying sentences. The journal entry specified that
intermediate sanctions were not required because Liby had initially been granted a
dispositional departure to probation.

Liby appeals, contesting only the revocation of his probation in case 16 CR 621.

Preservation

Liby argues for the first time on appeal that the district court erred by revoking his
probation without first imposing intermediate sanctions under K.S.A. 22-3716(c).
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Generally, issues not raised before the district court cannot be raised on appeal. State v.
Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). But an exception to that rule permits us
to hear an argument for the first time on appeal if the newly asserted theory involves only
a question of law and determines the case. State v. Phillips, 299 Kan. 479, 493, 325 P.3d
1095 (2014). Liby invokes this exception here, fulfilling his duty to explain why he did
not raise the issue below and why we should consider it on appeal. See Supreme Court
Rule 6.02(a)(5) (2018 Kan. S. Ct. R. 34).

We agree that Liby's appeal involves a question of law—whether K.S.A. 2017
Supp. 22-3716(c)(9)(B) applies to his case. We thus find this exception applicable and
reach the merits of Liby's argument.

The district court did not err in revoking Liby's probation without first imposing
sanctions.

The decision to revoke probation generally lies within the discretion of the district
court. State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). A district court may revoke
probation upon finding that the defendant violated the terms of probation. State v.
Walker, 260 Kan. 803, 808, 926 P.2d 218 (1996). But the district court's ability to revoke
probation is limited by statute. K.S.A. 2017 Supp. 22-3716(c)(1)(A)-(E) generally
requires the court to impose intermediate sanctions on an individual who violates the
conditions of probation. But a recent exception to that rule permits the court to revoke
probation without applying intermediate sanctions if the probation was granted as the
result of a dispositional departure by the sentencing court. K.S.A. 2017 Supp. 22-
3716(c)(9)(B). Liby admits that his probation was the result of a dispositional departure.

But the dispositional departure exception went into effect on July 1, 2017. Liby
contends we must apply the law in effect in 2016—the time he committed his crime of
conviction—a year before this dispositional departure exception went into effect. He
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relies on the general rule that courts must apply penal statutes as they were in effect when
a defendant committed a crime (citing State v. Kurtz, 51 Kan. App. 2d 50, Syl. ¶ 5, 340
P.3d 509 [2014]).

We agree that, generally, the criminal statutes in effect on the date a defendant
committed a crime govern the defendant's penalties. State v. Denney, 278 Kan. 643, 646,
101 P.3d 1257 (2004). But a different rule applies to sanctions for violating probation, as
Kurtz held:

"The legislature has . . . clarified that the date that controls the law that applies to
the imposition of sanctions for violating probation is the law that existed when the
defendant violated probation, not the law that existed when the defendant committed the
underlying crime." Kurtz, 51 Kan. App. 2d at 56.

The Legislature did so by enacting K.S.A. 2017 Supp. 22-3716(c)(12):

"The violation sanctions provided in this subsection shall apply to any violation
of conditions of release or assignment or a nonprison sanction occurring on and after July
1, 2013, regardless of when the offender was sentenced for the original crime or
committed the original crime for which sentenced."

The violation sanction provided in K.S.A. 2017 Supp. 22-3716(c)(9)(B) for dispositional
departure probations is a violation sanction provided in this subsection.

Liby violated his probation in October or November 2017, after the dispositional
departure exception took effect in July 2017. The district court properly looked to the law
in effect on the date the defendant violated probation, not the law that existed when the
defendant committed the underlying crime. Because Liby's probation was originally
granted as the result of a dispositional departure, the district court had the authority to
revoke Liby's probation without having previously imposed an intermediate sanction.
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Affirmed.

* * *

ATCHESON, J., concurring: Defendant Jerry Liby has no legal basis to complain
because the Saline County District Court revoked his probation and ordered him to serve
his underlying prison sentence without imposing some intermediate sanction. Liby
received a dispositional departure to probation at his sentencing on October 30, 2017,
following his no contest plea to and conviction for aggravated battery. The Kansas
Legislature amended K.S.A. 22-3716(c)(9) as of July 1, 2017, to give district courts the
authority to dispense with intermediate sanctions for defendants who violate the terms of
their probations after receiving dispositional departures. Because the amendment became
effective about four months before Liby agreed to accept probation as an alternative to
incarceration, he had fair notice that he could have his probation revoked and be sent to
prison for any violation. See Douglas v. Buder, 412 U.S. 430, 432, 93 S. Ct. 2199, 37 L.
Ed. 2d 52 (1973) (due process violated when Missouri court treats probationer's receipt of
a traffic ticket as an "arrest" and, therefore, a violation of his probation when that
amounts to an "unforeseeable" interpretation of state law).

Liby accepted the statutory and judicially imposed conditions of probation in
effect at the time of his sentencing and the consequences that would attach to a violation
of those conditions. He is bound to that election—he could have refused probation at all
and simply gone to prison to serve his sentence. Liby's knowing and voluntary choice
resolves this appeal and supports the district court's decision.

Under the circumstances here, we need not rely on the "retroactivity" language in
K.S.A. 2017 Supp. 22-3716(c)(12) to affirm the district court. I would not do so, since
there are at least potential pitfalls in that approach. The Legislature adopted that provision
in 2014 to extend intermediate sanctions to defendants who might otherwise have been
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considered ineligible for them and might have faced revocation and incarceration for their
first probation violations. It did so by requiring the district courts to apply the statutory
regimen of intermediate sanctions to defendants already on probation when those
sanctions went into effect in 2013. In short, K.S.A. 2017 Supp. 22-3716(c)(12) provided
a benefit to criminals on probation when it was enacted.

The majority, however, construes K.S.A. 2017 Supp. 22-3716(c)(12) in a way that
would allow district courts to apply legislative amendments imposing harsher
punishments for probation violations on defendants who have already accepted and have
already been placed on probation. That application (or any application) of K.S.A. 2017
Supp. 22-3716(c)(12) is unnecessary in this case. And the majority's construction raises
serious constitutional questions under both the Ex Post Facto Clause of the United States
Constitution and the Due Process Clause of its Fourteenth Amendment. Absent a
compelling reason, we should steer clear of constitutional issues. See Lyng v. Northwest
Indian Cemetery Prot. Assn., 485 U.S. 439, 445-46, 108 S. Ct. 1319, 99 L. Ed. 2d 534
(1988) (Courts should "avoid reaching constitutional questions in advance of the
necessity of deciding them.").

Liby says the revocation of his probation should be governed by the law as it was
in January 2015 when he committed the aggravated battery. But that argument is a
hollow one. A defendant's eligibility for probation as an alternative to serving a sentence
of incarceration may be dictated by the statutes in effect when he or she committed the
crime of conviction. The statutory availability of probation at all is intertwined with
punishment and would be driven by the date of the criminal act. See State v. Keel, 302
Kan. 560, Syl. ¶ 9, 357 P.3d 251 (2015) ("[I]t is a fundamental rule of sentencing that the
penalty parameters for a crime are established at the time the crime was committed.").
But the terms and conditions of the probation, the consequences for a violation, and the
grounds for revocation would be those in effect at the time a defendant accepts probation
as an alternative to incarceration. A later legislative change increasing the statutory
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punishments or bases for revocation for probationers across the board could be infirm if
applied retroactively. Conversely, a district court retains the authority to modify the terms
and conditions imposed on a particular probationer for cause and upon hearing to
promote his or her rehabilitation or to protect public safety.

Here, we need venture no further than finding Liby had fair notice that the district
court could revoke his probation and send him to prison for any violation because he had
accepted a departure to probation well after the amendment to K.S.A. 22-3716 creating
that exception to the statutory schedule of intermediate sanctions. On that basis, I concur
in affirming the district court's revocation of Liby's probation.