Friday, September 18, 2020

Repeal of intermediate sanctions, Part 2

Kasper C. Shirer won in State v. Dominguez, No. 121,618 (Kan. App. August 28, 2020), obtaining a new probation violation disposition hearing in a Sedgwick County trafficking in contraband prosecution. Ms. Dominguez had pleaded guilty and, being in a border-box, was placed on probation by the district court. Based on technical violations, the district court later revoked Ms. Dominguez' probation and gave her a three-day dip jail sanction and reinstated her probation. Still later, based on additional violations, the district court again found Ms. Dominguez had violated the terms of her probation. At the 2019 hearing on these violations, the state argued that the statute that provided for mandatory 120- or 180-day intermediate sanctions for probation violations had been repealed effective on July 1, 2019 and therefore requested that Ms. Dominguez be remanded to serve her prison sentence. The district court agreed with the state.

On appeal, the COA cited a recent KSC case, State v. Coleman, 311 Kan. 332, 460 P.3d 828 (2020) (blogged about here), which had held that a 2017 repeal of mandatory intermediate sanctions in certain cases did not apply retroactively. The COA held the same rationale applied here:

Although Coleman addressed the retroactivity of a different amendment to the probation revocation statute, the same reasoning applies here. The retroactivity language now found in K.S.A. 2019 Supp. 22-3716(c)(10) was enacted and inserted into the statute in 2014 to serve as an effective date for the new intermediate sanctioning scheme that had been enacted in 2013. Because the 2019 version of the sanctioning scheme did not exist at the time the language in subsection (c)(10) was enacted, the language in subsection (c)(10) cannot serve as a clear indication that the Legislature intended the 2019 amendment to operate retroactively.

As a result, the COA held that the 2019 repeal did not apply retroactively and, therefore, Ms. Dominguez was entitled to remand to impose an intermediate sanction unless the district court found a valid statutory ground to do otherwise.

[Update: the state did not file a PR and the mandate issued on October 6, 2020.]

No comments: