Repeal of intermediate sanctions does not apply retroactively

Christina M. Kerls nd Kai Tate Mann won in State v. Coleman, No. 118,673 (Kan. April 10, 2019), obtaining a new probation revocation disposition hearing in a Saline County possession prosecution. When Mr. Coleman was sentenced, Kansas law provided that, upon probation revocation, intermediate sanctions were required unless the district court makes specific findings. Since Mr. Coleman was sentenced, the Kansas Legislature repealed the statute requiring intermediate sanctions and when Mr. Coleman's probation was revoked, the district court held that such sanctions were no longer available. The KSC held that the repeal should not apply retroactively:

When it was adopted, the language of (c)(12) operated as an effective date provision for the graduated sanctions statutory amendment enacted in 2013. Subsection (c)(12) did not express an intent for subsection (c)(9)(B) to operate retrospectively because (c)(9)(B) did not then exist. Subsection (c)(9)(B) was not adopted until July 1, 2017. Thus, (c)(12) is an effective date provision which cannot function as "clear language indicating the legislature intended" (c)(9)(B) to operate retrospectively.

Thus, we hold 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. Coleman's offenses or crimes of conviction were all committed before July 1, 2017.

As a result, the KSC remanded with directions to give Mr. Coleman a new revocation disposition hearing.