Extended probation is a departure

Clayton J. Perkins won in State v. Hambright, No. 115,259 (Kan. August 23, 2019), reversing an extended probation period in a Sedgwick County criminal damage to property prosecution. The district court recognized that the standard probation period for this offense was 24-months, but imposed a 36-month probation period based on a finding that the shorter period would not serve Mr. Hambright's welfare because of extensive restitution obligations. Mr. Hambright argued that the extension was a departure, which could only be imposed upon proper findings, citing State v. Whitesell, 270 Kan. 259, 13 P.3d 887 (2000). The COA held that Whitesell was no longer controlling due to changes in the law and that the district court had discretion to impose a probation period up to 60 months. The KSC disagreed, nothing that while the Whitesell decision did not extensively analyze why an increased probation term is a departure, it treated it as such and had been treated as mandatory precedent: 

The panel did not discuss what it believed that this court had done to indicate that it was departing from its previous position.

The panel makes some points that would be mildly seductive if one were to be writing on a clean slate. But that is not the case. As Hambright points out, when this court decided Whitesell, K.S.A. 1999 Supp. 21-4611(c) contained the same "recommended duration of probation" language upon which the Court of Appeals relies to interpret the statutory term of 24 months to be advisory, i.e., merely a suggestion. As noted above, Whitesell interpreted the language to manifest an opposite legislative intent, i.e., the stated term of months is intended to be the presumptive duration of probation. In other words, the Hambright panel purports to overrule the Kansas Supreme Court's statutory interpretation. 

Of course, this court could choose to overrule its prior holding in Whitesell, albeit such a tack should not be employed simply to reach a result the current court deems more desirable. "The doctrine of stare decisis recognizes that '"once a point of law has been established by a court, that point of law will generally be followed by the same court and all courts of lower rank in subsequent cases where the same legal issue is raised."'" McCullough v. Wilson, 308 Kan. 1025, 1032, 426 P.3d 494 (2018).

The KSC held that circumstances did not justify overruling its precedent in this case, particularly in light of the Legislature's failure to amend the statute after Whitesell was decided:

The foregoing leads us to inquire whether more good than harm will come by departing from the holding in Whitesell. The panel did not expressly address that question, although it inadvertently pointed to the resultant harm from its decision when it string-cited the many Court of Appeals decisions that have followed the precedent. Two decades of reliance on Whitesell by the lower courts counsels against discarding it, unless 16 there is a compelling reason to do so. Given that a sentencing court is still able to impose an extended duration of probation under the Whitesell paradigm and a sentencing court that orders restitution can still invoke K.S.A. 2018 Supp. 21-6608(c)(7) to continue probation until restitution is paid, the compulsion to change the procedure for imposing an extended probation is not readily apparent. In short, the Court of Appeals decision overruling our holding in Whitesell and affirming the district court's departure to a 36-month period of probation is reversed. The matter is remanded to the district court for resentencing on the duration of probation under the correct legal standard.