State v. Tearney ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 120,340
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JESSICA E. TEARNEY,
Appellant.
MEMORANDUM OPINION
Appeal from Wyandotte District Court; BILL KLAPPER, judge. Opinion on remand filed July 24,
2020. Affirmed.
James M. Latta, of Kansas Appellate Defender Office, for appellant.
Christopher L. Schneider, assistant district attorney, Mark A. Dupree Sr., district attorney, and
Derek Schmidt, attorney general, for appellee.
Before GARDNER, P.J., MALONE, J., and MCANANY, S.J.
PER CURIAM: This probation revocation case comes before us by an order from the
Kansas Supreme Court summarily vacating our opinion in State v. Tearney, 57 Kan. App.
2d 601, 457 P.3d 178 (2019), and remanding it for consideration in light of State v.
Coleman, 311 Kan. 332, 460 P.3d 828 (2020). Tearney appeals from the district court's
revocation of probation in her drug distribution case, based on her probation violations in
2016.
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Coleman held that the statutory subsection authorizing revocation of probation
without intermediate sanctions if probation was originally granted as the result of a
dispositional departure did not apply retroactively. It specified that the K.S.A. 2017 Supp.
22-3716(c)(9)(B) exception, which allows a trial court to revoke a probationer's probation
without first imposing graduated sanctions if the probation was granted as a result of a
dispositional departure, applies only to probationers whose offenses or crimes of
conviction occurred on or after July 1, 2017. 311 Kan. at 337. Tearney violated her
probation before July 1, 2017. As a result, K.S.A. 2017 Supp. 22-3716(c)(9)(B) does not
apply to her.
But along with the dispositional departure exception, the district court relied on a
separate exception in revoking Tearney's probation without imposing intermediate
sanctions—the violator welfare exception. We now find it necessary to examine this
exception.
Under this exception, the district court may revoke an offender's probation without
imposing intermediate sanctions when an intermediate sanction will not serve the welfare
of the offender. K.S.A. 2017 Supp. 22-3716(c)(9)(A). This exception requires the district
court to "find[ ] and 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 such sanction." K.S.A. 2017 Supp. 22-3716(c)(9)(A). This exception became
effective July 1, 2013—see L. 2013, ch. 76, §5(c)(9)—and it applies to Tearney's
probation violations in this case.
"'"When 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. Dooley, 308 Kan. 641, 652, 423 P.3d 469 (2018)
(quoting State v. Huskey, 17 Kan. App. 2d 237, Syl. ¶ 2, 834 P.2d 1371 [1992]). Mere
conclusory statements about probation violations do not meet the particularity
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requirement of the statute. Instead, the district court "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. McFeeters, 52 Kan. App. 2d 45, 49,
362 P.3d 603 (2015).
Tearney contends that the district court's finding fails to meet the particularity
requirement of the statute. The district court's sole statement regarding Tearney's welfare
is:
"The Court also finds that pursuant to K.S.A. 22-3716(c)[9] as it found in the 15 CR 1064
case that the welfare of Miss Tearney is jeopardized by her failure . . . to seek drug
treatment and continue to give positive UAs."
The case the district court referred to—15 CR 1064—is Tearney's Kansas
Offender Registration Act (KORA) violation case. In that case, Tearney asserted, as she
does here, that the district court's finding that probation would not serve her welfare was
insufficient to revoke her probation. See State v. Tearney, No. 117,022, 2018 WL
2748573 (Kan. App. 2018) (unpublished opinion). There, the same district court had
found:
"'[Tearney] has not been able to successfully complete probation and she jeopardizes the
welfare of herself by the continuing drug use and she is not amenable to probation as set
forward in the presentence investigation—or excuse me, as set forward in the motion to
revoke probation, specifically about the positive UAs and the lack of treatment.'" 2018
WL 2748573, at *4.
Another panel of our court found these reasons particular enough to meet the terms of the
statute. As a result, the panel found that the district court did not abuse its discretion in
revoking Tearney's probation in her underlying KORA case on welfare grounds. 2018
WL 2748573, at *4.
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The district court in this case also handled Tearney's probation violations in her
KORA case. In ruling on Tearney's remanded probation violation case, the district court
relied on the panel's finding in her KORA case. The district court also cited specific facts
showing that Tearney either could not or would not comply with the terms of her
probation. When Tearney was on probation, she failed to seek drug treatment and
continued to give positive UAs evidencing her use of drugs, in violation of the terms of
her probation. Although the district court could have been more direct in showing how an
intermediate sanction would not serve Tearney's welfare, we find its reasoning sufficient
and consistent with the panel's decision in Tearney's KORA violation case. Therefore, the
trial court did not abuse its discretion by revoking Tearney's probation in this drug
distribution case based on her welfare not being served.
Affirmed.
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