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NOT DESIGNATED FOR PUBLICATION 

No. 122,290

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee, 

v.

TERESA ANNA RODRIGUEZ,

Appellant.

MEMORANDUM OPINION

Appeal from Ford District Court; E. LEIGH HOOD, judge. Opinion filed March 12, 2021. 

Affirmed.

Andrew M. Stein, of Doll Law Firm, LLC, of Dodge City, and Peter J. Antosh, of Garcia & 

Antosh, LLP, of Dodge City. for appellant.

Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for 

appellee.

Before BRUNS. P.J., GREEN and ATCHESON,JJ.

PER CURIAM: Defendant Teresa Anna Rodriguez appeals the 51-month sentence 

the Ford County District Court ordered her to serve following her no-contest plea to 

possession of methamphetamine with intent to distribute. Rodriguez contends the State 

impermissibly declined to honor a plea agreement with her when it opposed her request 

for probation. Cutting through some procedural clutter, we find no basis to upset the 

district court's sentencing decision and, therefore, affirm.
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The factual circumstances underlying the discovery of the drugs and Rodriguez' 

arrest are immaterial to the issues on appeal. Through her lawyer, Rodriguez worked out 

an arrangement with the State under which she would plead to one count of possession of 

methamphetamine with the intent to distribute, a severity level 3 drug felony. In return, 

the State would dismiss two less serious drug-related charges and not oppose Rodriguez' 

request for a reduced bond while she awaited sentencing. In addition, the State agreed not 

to oppose Rodriguez' motion for both a reduction in the standard guidelines sentence and 

placement on probation, even though the presumptive disposition under the sentencing 

guidelines called for incarceration. As part of the agreement, however, the State reserved 

the right to seek a standard guidelines sentence, including incarceration, if Rodriguez 

violated the bond terms.

Rodriguez pleaded no contest in late July 2019 to the methamphetamine charge. 

Consistent with the plea agreement, the State dismissed the other charges. The district 

court set a personal recognizance bond for Rodriguez, and she was released from jail. 

About a month later, Rodriguez reported to a court services officer as required under the 

bond. But she refused to provide a urine sample for drug testing and left without 

permission. The court services officer requested and received an arrest warrant for 

Rodriguez for violating the conditions of her bond. Rodriguez was taken into custody on 

the warrant and remained in jail until her sentencing hearing.

At that hearing in late October 2019, the State submitted it was no longer bound to 

the plea agreement and argued Rodriguez should receive a presumptive guidelines 

sentence that included incarceration. Rodriguez' lawyer acknowledged the terms of the 

plea agreement and the apparent bond violation. During allocution, Rodriguez admitted 

the bond violation and described the deep-seated substance abuse that continued to afflict 

her when she was released on bond. But Rodriguez told the district court that she had

been sober in jail following the bond revocation and that she believed she would remain

drug free if given a chance on probation consistent with the plea agreement.
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The district court stated that it likely would have followed the plea agreement and 

placed Rodriguez on probation had she not violated her bond conditions. The district 

court also pointed out the State was no longer constrained by the agreement in taking a 

position on sentencing. Given Rodriguez' failure on bond, the district court concluded it 

would follow the State's recommendation and impose a standard guidelines sentence for 

possession of methamphetamine with intent to distribute. Accordingly, the district court 

ordered Rodriguez to serve 51 months in prison followed by 36 months on postrelease 

supervision. Rodriguez has appealed.

The State contends Rodriguez cannot appeal because she received a sentence 

conforming to the statutory guidelines. See K.S.A. 2020 Supp. 21-6820(c). The legal 

principle is correct. But we view Rodriguez' argument to be different. We understand 

Rodriguez to be asserting the State impermissibly refused to follow the plea agreement, 

thereby entitling her to a new sentencing hearing. As we explain, we find the argument 

unavailing on the facts. But a defendant may appeal the State's failure to honor a plea 

agreement, even if the district court has imposed a guidelines sentence. See State v. 

Jones, 302 Kan. 111, 114, 351 P.3d 1228 (2015) (court reviews and decides defendant's 

claim State breached plea agreement, even though district court imposed guidelines 

sentence).

In crafting her appellate argument, Rodriguez adds another procedural wrinkle. 

She contends she had a constitutional due process right to a hearing on the revocation of 

her bond. And because she had not been afforded a hearing, the State could not rely on 

the bond violation to avoid the plea agreement's limitations on its position at sentencing. 

We assume without deciding that Rodriguez had both statutory and constitutional rights 

to a hearing on the alleged bond violation. But that carries Rodriguez only so far under

the circumstances.
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Under K.S.A. 22-2804, a district court may set an appearance bond for a defendant

following conviction and before sentencing. The district court did so here. If

a defendant violates an appearance bond, the district court may revoke the bond as 

provided in K.S.A. 2020 Supp. 22-2807. If a defendant fails to appear, the district court 

may immediately forfeit the bond. K.S.A. 2020 Supp. 22-2807(1). The defendant's failure 

to appear would be a self-evident failure to comply with the fundamental condition of the 

bond. Even then, the district court may later set aside the forfeiture. Here, Rodriguez 

appeared in the district court as required but violated other conditions of the bond. By 

signing an arrest warrant under K.S.A. 2020 Supp. 22-2807(2), the district court may 

revoke a defendant's bond for a violation other than failing to appear. Issuance of the arrest

warrant effects the bond revocation. But the district court "shall forthwith set a new bond"

as required by K.S.A. 2020 Supp. 22-2802 that governs setting a bond at a defendant's first

appearance. So K.S.A. 2020 Supp. 22-2807(2) applies here, and the statutory language

suggests the district court should hold some sort of a hearing if for no other reason than to 

consider a new bond. See State v. Anguiano, No. 100,717, 2009 WL

3082586, at *6 (Kan. App. 2009) (unpublished opinion). The district court's decision on 

setting a new bond presumably would be informed, at least in part, by the reasons for 

(and the validity of) the revocation of the original bond.

More broadly, an appearance bond offers a defendant conditional release from 

incarceration and, therefore, implicates a liberty interest. The Due Process Clause of the 

Fourteenth Amendment to the United States Constitution affords individuals the right to 

be heard to avert a wrongful deprivation of a protected property right or liberty interest as 

the result of some government action. State v. Gonzalez, 57 Kan. App. 2d 618, 623, 457

P.3d 938 (2019). The form of the process due is shaped by the right or interest at stake.

57 Kan. App. 2d 618, Syl. ¶ 2. The United States Supreme Court has recognized that 

constitutional due process protections, including a hearing, attach to the revocation of 

probation and parole as postsentencing forms of conditional release. See Gagnon v. 

Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973) (probation
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revocation); Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 33 L. Ed. 2d 484 

(1972) (parole revocation).

It's not much of an incremental step to conclude the revocation of a presentencing 

appearance bond requires some form of constitutional due process and likely includes a 

hearing following the revocation triggered by the issuance of an arrest warrant under 

K.S.A. 22-2807(2). See United States v. Salerno, 481 U.S. 739, 751-52, 107 S. Ct. 2095,

95 L. Ed. 2d 697 (1987) (defendant's right to hearing with lawyer on conditions of 

pretrial detention under federal Bail Reform Act of 1984 satisfies Due Process Clause of 

Fifth Amendment); Josh J. v. Commonwealth, 478 Mass. 716, 722-23, 89 N.E.3d 1123 

(2018) (bond revocation implicates constitutional due process); State v. Burgins, 464

S.W.3d 298, 308-09 (Tenn. 2015) (same); 4 LaFave, Israel, King, and Kerr, Crim. Proc.

§ 12.3(g) (4th ed. 2020) (bond revocation hearing must conform to procedural due 

process requirements). But our assumption of those due process protections still doesn't 

get Rodriguez to the winner's circle.

The record indicates Rodriguez never requested a hearing on the bond revocation or

for reinstatement of an appearance bond. A criminal defendant may waive or forfeit even

constitutional rights. See State v. James, 309 Kan. 1280, Syl. ¶ 5, 443 P.3d 1063 (2019)

(recognizing waiver of constitutional right); State v. Jones, 287 Kan. 559, Syl. ¶ 4,

197 P.3d 815 (2008) (recognizing forfeiture of constitutional right); see also United 

States v. Brasher, 962 F.3d 254, 271 (7th Cir. 2020) (recognizing defendant's dilatory 

assertion of constitutional right may result in waiver or forfeiture). Rodriguez may have 

done so here. But appellate courts should be cautious in finding waivers of constitutional 

rights and especially chary to declare forfeitures of them. Nonetheless, even giving 

Rodriguez the benefit of those restraints, we find no grounds for reversing the district 

court.
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The erroneous deprivation of most constitutional rights may be considered 

harmless in the absence of demonstrable prejudice. See State v. Ward, 292 Kan. 541, 

Syl. ¶¶ 5-6, 256 P.3d 801 (2011); see also State v. Lowery, 308 Kan. 1183, 1215, 427

P.3d 865 (2018) (acknowledging constitutional errors typically subject to review for 

harmlessness). Here, assuming as we have that Rodriguez had a due process right to a 

hearing on the revocation of her bond and that she didn't waive or forfeit that right, any 

error still would be subject to review for harmlessness. Even under the rigorous standard 

outlined in Ward for assessing constitutional error, we cannot see how Rodriguez' 

sentencing would have been any different. See 292 Kan. 541, Syl. ¶ 6. That's because 

both Rodriguez and her lawyer admitted the bond violation during the sentencing 

hearing. In her own statement to the district court at the sentencing, Rodriguez sought to 

turn the violation and the revocation to her advantage by suggesting she finally 

appreciated the hold methamphetamine had exerted over her and had defeated her 

dependency during her time in jail. Those concessions necessarily obviate any failure of 

the State to prove Rodriguez' bond violation at some earlier due process hearing that 

should have been held but never was.

In short, the premises on which Rodriguez rests her argument that the State failed 

to honor its commitments under the plea agreement do not hold up. In turn, the State did 

not impermissibly abandon those commitments. We find no error in the sentencing 

proceedings and, therefore, affirm the district court's decision.

Affirmed.