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NOT DESIGNATED FOR PUBLICATION

No. 125,281

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

JORGE ROMERO JR.,

Appellant.

MEMORANDUM OPINION

Appeal from Butler District Court; PHYLLIS K. WEBSTER, magistrate judge. Submitted without 

oral argument. Opinion filed February 9, 2024. Reversed and remanded with directions.

Mark T. Schoenhofer, of Wichita, for appellant.

Amber R. Norris, assistant county attorney, and Kris W. Kobach, attorney general, for appellee.

Before ATCHESON, P.J., ISHERWOOD and HURST, JJ.

HURST, J.: Jorge Romero Jr. appeals from the district court's order revoking and 

reinstating his probation. After being sentenced to probation in the present case, Romero 

was detained and remained incarcerated in a different county on separate charges. Prior to 

his release, the State moved to revoke Romero's probation for failure to report and failure 

to pay costs and restitution, but Romero was not directed to report or pay during his 

incarceration. Consistent with Romero's claims, the district court lacked substantial 

competent evidence supporting its revocation decision. The district court's revocation and 

reinstatement of Romero's probation is reversed, and this case is remanded with 
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directions to reinstate Romero's original probation and determine if its terms and 

conditions have been satisfied consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

The State originally charged Jorge Romero Jr. in this case with one count of 

felony theft, one count of misdemeanor theft, and one count of criminal use of a weapon, 

all class A nonperson misdemeanors, for his alleged conduct on September 13, 2018. At 

that the time, Romero was already facing charges in a separate case in Sedgwick County 

for aggravated robbery, aggravated kidnapping, and aggravated battery arising out of 

actions in January 2018.

As part of a plea agreement, on January 30, 2019, Romero pled no contest to two 

counts of class A nonperson misdemeanor theft. The same day, the district court 

sentenced Romero to 12 months of probation with underlying concurrent 12-month terms 

in jail and ordered him to pay restitution of $9,962.29.

At sentencing, the district court ordered Romero's probation to begin immediately 

and stated that he would be released from jail that afternoon. The prosecutor then noted to 

the court that there may be a "hold" on Romero due to the pending charges in Sedgwick 

County and that "if he does [have a hold], he's gonna have to go back to Sedgwick 

County" Jail. The court then explained to Romero that it would have a court services 

officer (CSO) "come up and visit with you now, and give you a date and time to come up 

and report on probation. Now, if you're in custody on that date, you need to make sure 

that gets communicated over here. Otherwise, it will show up as a failure to report." 

Romero replied, "Okay."
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The district court then summarized the conditions of Romero's probation as 

follows:

"THE COURT: The conditions of your probation will be that you not again 

violate the law; that you report as directed; that you make restitution; that you pay the 

court costs and probation supervision fees.

"You're not to have any contact with the victim or victims in this case. Which 

would be the owner of the Audi and the dealer from which the tag was stolen. And 

otherwise, abide by standard conditions of probation. No drugs or alcohol. Report as 

directed.

"Do you have any questions?

"DEFENDANT ROMERO: No, Your Honor. Thank you." (Emphasis added.) 

The hearing ended with the court reiterating to Romero that he needed to come back to 

the court after he was released from custody to report to court services. Until the State 

moved to revoke his probation in February 2020, there is no evidence that court services 

spoke with or contacted Romero after the sentencing hearing.

Journal Entry of Sentencing

The journal entry of the sentencing notates that Romero was sentenced to 12 

months of probation with an underlying 12-month jail term and that Romero was required 

to pay restitution of $8,962.29 to the victim's insurance company and $1,000 to the 

victim. Further, the journal entry documented Romero's probation requirements as 

follows:

"The defendant is granted reporting probation of 12 months with Court Services.

"In addition to the provisions set forth in K.S.A. 21-4610, the defendant is ordered to 

comply with all standard probation conditions and with the following special conditions 

as listed below:
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• "Submit to random but reasonable breath, blood, and/or urinalysis testing at 

request of C.S.O. at defendant's own expense.

• "Defendant shall not possess or consume alcohol or drugs and shall not enter 

taverns and/or establishments that serve liquor, cereal malt beverages, or illegal 

drugs.

• "Defendant shall not associate with alcoholics, illegal drug users, or people who 

make alcohol and/or illegal drugs available.

• "Gain and/or maintain employment.

• "Notify C.S.O. of changes in employment, residence and phone number.

• "Pay all costs, fines, fees and restitution associated with this case, if applicable.

• "No contact with [the victims.]

• "No contact with [another involved party.]

• "Defendant to make minimum monthly payments." (Emphases added.) 

The journal entry erroneously cited to K.S.A. 21-4610, which was recodified as K.S.A. 

2018 Supp. 21-6607.

Probation Revocation

On February 28, 2020, the Butler County CSO filed a motion to revoke his

probation alleging failure to pay court costs and restitution and failure to report to the 

probation office as directed. The CSO's comment on the revocation request stated that 

Romero "has been in custody in the Sedgwick County Jail since sentencing in this case"

and "has not completed conditions of probation in this case, due to being in custody."

According to the probation revocation request, Romero's probation expired on January 

30, 2023. Because of the probation revocation request, a warrant was issued and served 

on Romero in Sedgwick County Jail on December 20, 2021. 

The district court held a probation revocation hearing in this case on May 11, 

2022. The CSO confirmed she did not attend Romero's sentencing, was not present when 
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he was placed on probation, and Romero had made no restitution payments. The CSO 

never contacted Romero about his probation because he was in custody the entire time

before the State moved to revoke his probation. The CSO followed his pending case in 

Sedgwick County. The CSO testified that she received a call from Romero's mother on 

January 31, 2019, and from his wife on April 3, 2019, each telling her that Romero was 

still in custody in Sedgwick County. When she spoke to Romero's wife, the CSO testified 

that she "did advise [Romero's wife] that he needed to contact me upon release." 

The district court found that Romero violated his probation because he had not 

paid his restitution to the insurance company or victim and had not reported for 

probation. The court recognized that during the entire probation period, Romero was 

incarcerated for separate criminal charges that occurred before his sentencing in this case. 

Even so, the court noted:

"[I]t wasn't [the CSO's] fault that he was sitting in the county jail in Sedgwick County. It 

wasn't [the CSO's] responsibility to find him, and go to him, and sit with him in the 

Sedgwick County Jail and supervise him. Like I said, he got there on his own. And it was 

he who had the responsibility to report to [the CSO], and not vice versa." 

The court revoked and reinstated Romero's probation for one year. It also ordered 

Romero to pay $100 per month toward his outstanding restitution and report to probation 

starting that day. 

On May 19, 2022, for the first time, Romero signed a conditions of probation 

form. This documented that his January 2019 probation was reinstated on May 11, 2022, 

and that he was subject to probation for 12 months. Romero timely appeals revocation of 

his probation. 
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DISCUSSION

On appeal, Romero's claim is that the district court erred in revoking his probation 

because the State failed to provide substantial competent evidence that he violated the 

terms of his probation. In support of his claim, Romero argues that (1) the State failed to 

introduce evidence of the terms and conditions of probation; (2) the court failed to 

provide a written statement of the evidence it relied on in finding he violated probation; 

(3) there was no evidence Romero was notified of the terms and conditions of probation;

and (3) the court inappropriately considered conduct that occurred prior to his sentencing. 

. 

I. THE STATE DEMONSTRATED THE TERMS AND CONDITIONS OF ROMERO'S 

PROBATION

Romero claims that the State failed to prove the terms and conditions of his 

probation, combining two arguments. Part of this claim relates to the specific conditions 

upon which the district court revoked and reinstated his probation—which is addressed 

below. On the claim that the State generally failed to prove that it had established terms 

and conditions for his probation, Romero fails. The journal entry of sentencing contains 

the terms and conditions of Romero's probation, including the following, that the State 

claims Romero violated: 

• "Pay all costs, fines, fees and restitution associated with this case, if 

applicable."

• "Defendant to make minimum monthly payments."

At the revocation hearing, the State asked the district court to "take judicial notice of the 

Journal Entry, which shows the date of sentencing; and length of probation time; and 

money due and owing," and the court confirmed that it took judicial notice. 
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Moreover, during sentencing the district court stated that "[t]he conditions 

of your probation will be that you not again violate the law; that you report as 

directed; that you make restitution; that you pay the court costs and probation 

supervision fees," and these instructions were later included in the transcript of the 

probation revocation hearing.

While these terms and conditions lack the specificity that the State later 

sought to rely upon for revocation, the terms and conditions nonetheless exist. 

There is no requirement that the probation terms and conditions contain more 

specificity, but the lack of specificity does create a potential problem in 

enforcement proceedings as shown here. See Leatherwood v. Allbaugh, 861 F.3d 

1034, 1045 (10th Cir. 2017) (conditions of probation in a probation order may be 

further illuminated by the judge's statements or other events which aid the court in 

determining whether the defendant was sufficiently forewarned of the proscribed

activities); State v. Mireles, No. 102,997, 2011 WL 135027, at *4 (Kan. App. 

2011) (unpublished opinion) ("The conditions of probation must be reasonably 

clear and understandable so that probationers can conform their conduct to those 

requirements supporting [sic] they intend to do so.").

II. THE TRANSCRIPT OF THE DISTRICT COURT'S PROBATION REVOCATION 

HEARING AND ITS WRITTEN ORDER SUFFICIENTLY DEMONSTRATE THE 

COURT'S FINDINGS AND REASONING 

Romero claims that the district court violated his due process rights by failing to 

provide an adequate written record of the evidence relied upon for its decision to revoke 

and reinstate his probation. Due process requires that the district court identify "'the 

evidence relied on and reasons for revoking probation.'" State v. Hurley, 303 Kan. 575, 

582, 363 P.3d 1095 (2016). This court exercises unlimited review over questions of due 

process violations in probation revocation. 303 Kan. at 580.
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When revoking probation: 

"'Minimum due process includes written notice of the claimed violations of probation, 

disclosure to the probationer of the evidence against him or her, the opportunity to be 

heard in person and to present evidence and witnesses, the right to confront and crossexamine adverse witnesses, a neutral and detached hearing body, and a written statement 

by the factfinder as to the evidence relied on and reasons for revoking probation. The 

probationer also has a right to the assistance of counsel.'[Citation omitted.]" (Emphasis 

added.) Hurley, 303 Kan. at 582 (quoting State v. Billings, 30 Kan. App. 2d 236, 238, 39 

P.3d 682 [2002], and finding that K.S.A. 2011 Supp. 22-3716 satisfies "all constitutional 

requirements" set forth by the United States Supreme Court).

Here, the district court's written findings are not viewed in isolation. A transcript 

of the revocation hearing is available and can be used to ascertain the court's findings. 

See Morishita v. Morris, 702 F.2d 207, 209 (10th Cir. 1983) (Where there is a transcript 

of the proceedings, "[t]he failure of the state judge to make written findings of fact and 

conclusions of law does not alone render the revocation hearing fundamentally unfair. 

[Citations omitted.]"). Rather, "written findings are constitutionally required only if the 

transcript and record before the judge do not enable a reviewing court to determine the 

basis of the judge's decision to revoke probation." 702 F.2d at 210; see also Black v. 

Romano, 471 U.S. 606, 616, 105 S. Ct. 2254, 85 L. Ed. 2d 636 (1985) (finding that "[t]he 

memorandum prepared by the sentencing court and the transcript of the hearing provided 

the necessary written statement explaining the evidence relied upon and the reason for the 

decision to revoke probation").

The district court explained that it found Romero in violation of the terms and 

conditions of his probation because "[h]e was ordered to pay . . . and he has not done that. 

He was also ordered to report. Reporting is part of the rehabilitative process, and he did 

not do that." The court did acknowledge that Romero was "locked up" and that is why he 

did not report, but then explained "he was locked up in Sedgwick County by his own 
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doing." The transcript of the district court's reasoning for revocation and the written 

journal entry of revocation adequately detail the court's reasoning and the evidence relied 

upon to support that reasoning. Contrary to Romero's contention, those findings were not 

related to his conduct prior to sentencing in this case. However, whether the district 

court's stated reasoning was supported by the facts and law is a separate issue addressed 

herein.

III. THE DISTRICT COURT ABUSED ITS DISCRETION BY REVOKING AND REINSTATING 

ROMERO'S PROBATION

While the district court sufficiently articulated its reasoning for revoking Romero's 

probation, this court must still determine whether that reasoning was legally and factually 

sound. The initial decision to sentence a defendant to probation rather than jail is an act 

of grace, but once that grace is granted, the defendant has a conditional liberty interest, 

subject to substantive and procedural due process, in remaining on probation. Therefore, 

once probation is imposed, it may be revoked only upon a determination that the 

defendant failed to meet the conditions of probation. Hurley, 303 Kan. at 581. Before 

revoking probation, a district court must (1) make a factual determination that the 

probationer violated a condition of probation and (2) make a discretionary determination 

of the appropriate disposition, which could include revocation. State v. Horton, 308 Kan. 

757, 760-61, 423 P.3d 548 (2018) (quoting State v. Skolaut, 286 Kan. 219, 227, 182 P.3d 

1231 [2008]).

In the first stage, the State must demonstrate by a preponderance of the evidence

that the probationer violated the terms of probation. State v. Gumfory, 281 Kan. 1168, 

1170, 135 P.3d 1191 (2006). This court reviews the district court's factual findings 

regarding a probation violation for substantial competent evidence, which is legal and 
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relevant evidence that "a reasonable person might accept as being sufficient to support a 

conclusion." State v. Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.3d 844 (2007) (quoting 

State v. Luna, 271 Kan. 573, 574-75, 24 P.3d 125 [2001]). Once the State has shown a 

probation violation by a preponderance of the evidence, the district court has the 

discretion to impose a statutorily permitted sanction, which could include probation 

revocation. State v. Tafolla, 315 Kan. 324, 328, 508 P.3d 351 (2022); see K.S.A. 2022

Supp. 22-3716(b) and (c) (requiring graduated sanctions before revocation of probation in 

certain circumstances). 

This court reviews the district court's imposition of a probation sanction for an abuse 

of discretion. A court abuses its discretion when its decision is based on an error of law, 

an error of fact, or was "arbitrary, fanciful, or unreasonable." Tafolla, 315 Kan. at 328. 

A. The district court made an error of fact in finding that Romero violated a term or 

condition of probation by failing to report. 

Romero argues the State failed to show that he was notified of the terms and 

conditions of probation including how often he was supposed to report to the CSO, that 

he needed to report in person, or that he needed to report while in jail. Essentially, 

Romero claims that the State revoked his probation for failing to report in a manner and 

method that was not included in the terms and conditions of his probation. While the 

terms and conditions required Romero to report for probation, there were no specific 

timing or manner requirements—other than to report after his release from custody—

included in the journal entry or the district court's oral recitation. 

Upon being granted probation in Butler County, the district court told Romero to 

"report as directed" for probation and the court told him to report to court services for 

probation after his release from jail. The court also notified Romero that someone from 

court services would speak to him after the hearing to provide him information on when 
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to report, and that he needed to notify the CSO if he was in custody on the designated 

date or it would show up as a failure to report. The State provided no evidence that 

anyone from court services ever contacted Romero to advise him when or how to report.

Romero's CSO testified that she never contacted Romero with directions for reporting.

Therefore, the only reporting information came from the district court at sentencing. 

At some point shortly after the sentencing hearing, Romero was transferred to 

Sedgwick County Jail to be detained for his previously pending charges. While he was in 

Sedgwick County Jail, it is undisputed that Romero's family called the CSO twice to tell 

her Romero was still in jail. According to the CSO, she never contacted Romero 

regarding his probation and told Romero's wife "that he needed to contact me upon 

release." However, prior to his release from custody in a separate case, the State sought to 

revoke his probation in part for his failure to report to the CSO. It is difficult to 

understand how Romero could have violated the condition to report for probation after 

his release when he had yet to be released. See, e.g., State v. Ledesma, No. 108,433, 2013 

WL 4565014, at *1, 4 (Kan. App. 2013) (unpublished opinion) (condition precedent 

triggering the defendant's duty to report never occurred); State v. Reineke, No. 94,028, 

2006 WL 2465459, at *4 (Kan. App. 2006) (unpublished opinion) (no evidence that the 

defendant was directed to report while in jail); but see State v. Tupas, No. 100,100, 2009 

WL 1140323, at *2 (Kan. App. 2009) (unpublished opinion) (affirming revocation of 

defendant's probation where there was no evidence he was told to do anything other than 

report regardless of his circumstances). 

In Reineke, after being convicted, the defendant was sentenced to presumptive 

probation with a special condition requiring him to report to the community corrections 

officer "'as directed.'" 2006 WL 2465459, at *1. When he was sentenced to probation, 

Reineke was already in jail for pending charges for which he was convicted and 

sentenced a few months later. As a result, the defendant was in jail or prison throughout 

the entire probation period. The State eventually revoked Reineke's probation for failure 
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to report and ordered him to serve his sentences. On appeal, the panel in Reineke held that 

the district court abused its discretion in revoking the defendant's probation because there 

was no evidence he was directed to report for probation while in jail on other charges. In 

fact, he had been told to report after release from jail, and he was never "directed" nor 

required to report while in jail. 2006 WL 2465459, at *4. 

Similarly, in Ledesma the defendant was facing warrants in a different county and 

was transferred there after he was sentenced to probation in a later case. The district court 

later revoked the defendant's probation for failure to report and failure to pay and 

reinstated his probation. The appellate court found the defendant had been told to report 

after his outstanding warrants were "'taken care of,'" but one of the warrants was never 

"'taken care of'" because he was imprisoned. 2013 WL 4565014, at *4. Therefore, as in 

Reineke, the condition precedent to his requirement to report was never met, and thus the 

district court erred in finding the defendant violated the terms and conditions of his 

probation. 2013 WL 4565014, at *4. 

Romero followed the reporting directions of the district court and the CSO. The 

court directed him to notify the CSO if he was in custody—which he did—and the CSO 

told his wife that he must report once released from custody. As in Ledesma, a condition 

precedent to Romero's reporting requirement—his release from custody—never occurred. 

See 2013 WL 4565014, at *4. Because the State sought to revoke Romero's probation 

before his release from custody, Romero was denied the ability to follow the court's 

reporting directions and there was insufficient evidence for a reasonable person to

conclude he violated the terms and conditions of probation by failing to report. Romero's

probation was incorrectly revoked on this basis, and the district court erred. See Inkelaar, 

38 Kan. App. 2d at 315.

In addition to this factual error, this court is puzzled about Romero's legal ability 

to simultaneously serve his jail sentence and report for the start of probation. Probation is
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"a procedure under which a defendant, convicted of a crime, is released by the court after 

imposition of sentence, without imprisonment . . . subject to conditions imposed by the 

court . . . ." K.S.A. 2022 Supp. 21-6603(g). While probation is not inherently inconsistent 

if imposed consecutive to an incarceration term in an unrelated case, this court is 

reluctant to say that concurrent probation and incarceration—even in unrelated cases—

are compatible. See State v. Dubish, 236 Kan. 848, 854-55, 696 P.2d 969 (1985) 

(sentences of simultaneous probation and incarceration in the same case are inconsistent);

State v. Torkelson, 29 Kan. App. 2d 672, 675, 30 P.3d 320 (2001) (noting that probation 

consecutive to incarceration in different cases is not prohibited). Probation is antithetical 

to simultaneous incarceration. 

B. The district court made an error of fact when it found Romero failed to pay 

restitution as required in the terms and conditions of his probation. 

Romero claims the State also failed to establish that he violated the terms and 

conditions of his probation by failing to pay restitution. Although this panel agrees that 

the district court erred in revoking Romero's probation based on a failure to report, this 

panel still reviews his second argument because revocation on one valid ground is 

sufficient even if another ground was invalid. See State v. Grossman, 45 Kan. App. 2d 

420, 428, 248 P.3d 776 (2011) (when the district court relied on one valid ground to 

revoke probation, it does not matter if another ground was invalid).

Although the evidence demonstrates that Romero was directed to pay costs, fees,

and restitution as a term of his probation, there was no evidence about how and when he 

needed to make such payment. The journal entry of sentencing includes the amounts 

owed and ordered Romero to "[p]ay all costs, fines, fees and restitution associated with 

this case" and "to make minimum monthly payments." At the probation revocation 

hearing, the CSO testified only that Romero was ordered to pay but never made any 

payments while in jail. There was no evidence the CSO ever contacted Romero to give 
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him an amount to pay monthly or directions for payment. Presumably Romero would 

have received such information upon reporting to the CSO after his release from custody, 

as directed by the district court, and as the CSO directed Romero's wife. 

Here, there was no evidence Romero had any meeting with his CSO or any 

probation intake, and he never received information or documentation about how to make 

the required payments. Practically, his probation never began because he was in custody

on a separate case the entire time preceding the State's motion to revoke his probation. 

Additionally, the district court told Romero to report to probation only after his release

from custody. As with the reporting requirement, there was no evidence Romero was 

required to make payments prior to his release from custody or before reporting for 

probation. It was only after the district court revoked and reinstated his probation that 

Romero received direction on how and when to pay the costs, fees, and restitution—the 

district court could not revoke his probation for failing to pay the unidentified monthly 

amount to an unidentified location in an unidentified manner.

Romero was directed to report to the CSO for probation after his release from 

custody. Because Romero was not released before the State sought to revoke his 

probation, he was not given the ability to follow the terms and conditions of his probation 

to report. Therefore, the district court lacked substantial competent evidence that Romero 

violated the terms and conditions of his probation by failing to pay costs, fees, and 

restitution because he had no directions for payment prior to his release from custody. 

See Inkelaar, 38 Kan. App. 2d at 315.

CONCLUSION

At the time of Romero's sentencing, the district court knew he was likely to be 

detained in a separate matter and directed Romero to report to the CSO for his probation 

after his release from custody in that separate case. The CSO knew he was incarcerated,
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and Romero followed directions to have his family keep the CSO notified of his 

continued incarceration. Despite the clear directions to report after his release from 

custody, the State sought to revoke Romero's probation prior to his release from 

custody—the condition precedent to the terms and conditions of his probation. Romero 

had no instructions to report or make restitution payments while incarcerated in the 

separate case. The district court abused its discretion in revoking and reinstating 

Romero's probation because it lacked substantial competent evidence supporting the 

allegations that Romero violated the terms and conditions of his probation.

The district court's revocation and reinstatement is reversed and remanded with 

directions to reinstate Romero's original probation, determine if Romero has completed 

the terms and conditions of the original probation, and enter any further orders that may 

be necessary and consistent with this opinion. 

Reversed and remanded with directions.