1 NOT DESIGNATED FOR PUBLICATION

No

. 12 1 , 957

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

S TATE OF K ANSAS , Appellee ,

v.

D ALLAS C OLT C OMBS , Appell ant

.

MEMORANDUM OPINION

Appeal from Reno District Court; T IMOTHY J. C HAMBERS , judge. Opinion filed January 29 , 202 1

. Sentence v acated and case remanded with directions

.

Kasper Schirer , of Kansas Appellate Defender Office, f or appellant

.

Thomas R. Stanton , county attorney, and Derek Schmidt , attorney general , for appellee

.

B efore M ALONE , P.J., H ILL and B USER , JJ.

P ER C URIAM : Dallas Colt Combs appeals the district court's revocation of his probation and imposition of a modified sentence. Combs argues that the district court erred in revoking his probation because it impermissibly applied the 2019 amendment to the probation revocation statute

— which removed the 120

- or 180

- day intermediate
sanction

— and it cited no statutory exception to bypass imposing inter mediate sanctions. Combs also argues that the journal entry impermissibly imposed a period of postrelease supervision that the district court did not pronounce from the bench when it modified his

sentence

. For the reasons stated in this opinion, we agree t hat the district court erred in revoking Combs ' probation and remand for a new dispositional hearing.2 F ACTS AND P ROCEDURAL H ISTORY

On August 21, 2018, Combs committed acts charged as possession with intent to distribute marijuana within 1 , 000 feet of a sch ool, distribution of hydrocodone within
1 , 000 feet of a school, possession of drug paraphernalia, two counts of criminal possession of a firearm, and two counts of theft of property. On February 13, 2019,
Combs plead ed guilty to all counts in exchange for the State's agreement to not oppose
Combs ' request for a dispositional departure. On March 22, 2019, the district court imposed a controlling sentence of 232 months ' imprisonment with 36 months ' postrelease supervision, but the court granted a dispositional d eparture to probation for 36 months.

On July 9, 2019, Combs waived his right to a hearing and accepted a three

- day jail sanction for various probation violations. On July 30, 2019, Combs again waived his right to a hearing and accepted a three

- day jail sa nction for various probation violations.

On August 12, 2019, the State moved to revoke Combs ' probation, alleging that he failed to show up for a scheduled meeting with his intensive supervision officer (ISO), failed to maintain employment, was kicked out of the Promise House, failed to reside at
his reported place of residence with individuals approved by his ISO, failed to report to parole, and tested positive for drugs and alcohol. On August 28, 2019, Combs stipulated to the violations alleged in the mo tion to revoke. The district court granted Combs ' request to continue the disposition hearing.

At the disposition hearing on September 13, 2019 , Combs asked the district court to impose a 120

- or 180

- day intermediate sanction. The district court asked the State
whether the 120

- and 180

- day sanctions still existed under the law, to which the State responded they were no longer an option. The district judge then stated that based on
Combs ' criminal history and the probation violations, he did not think " that we can actually make it work for [Combs] on Community Corrections. " The district court3 revoked Combs ' probation and ordered him to serve a modified sentence of 116 months ' imprisonment by running the sentences for the counts concurrent instead of cons ecutive

. The district court did not order a term of postrelease supervision from the bench, but the journal entry included a postrelease term of 36 months. Combs timely appeal ed

.

A NALYSIS

On appeal, Combs argues that the district court erred in applying the 2019 amendments to the intermediate sanctioning scheme and did not invoke a valid statutory bypass of the intermediate sanctions before revoking his probation and ordering him to serve a modified sentence. Alternatively, Combs argues that the district court did not order a postrelease term from the bench as part of its sentence modification, so this court must vacate the postrelease term indicated in the journal entry revoking his probation.

The probation revocation statute, K.S.A. 2019 Supp. 22

- 3716 , generally r equires the district court to impose various intermediate sanctions before revoking a defendant's probation. But the number and type of intermediate sanctions the district court must impose before revocation has recently changed. Before July 1, 2019, the d istrict court had to impose either a 2

- or 3

- day jail sanction and then a 120

- or a 180

- day prison sanction before revoking a defendant's probation. See K.S.A. 2018 Supp. 22

- 3716(c)(1)( B )

- (D)

. But effective July 1, 2019, the Legislature removed the 120

- an d 180

- day prison sanction from the intermediate sanctioning scheme. See K.S.A. 2019 Supp. 22

- 3716(c)(1)

.

Combs argues the district court erred in revoking his probation because it impermissibly applied the 2019 version of the intermediate sanctioning sche me and it did not otherwise invoke a statutory exception for bypassing the imposition of intermediate sanctions. Combs argues that he preserved this issue by asking the district court to impose a 120

- or 180

- day sanction. Although Combs asked for a 120

- o r 180

- day sanction he did not argue that the 2019 amendment did not apply. In any event, we can4 address this issue because as Combs correctly asserts, which version of the law applies involves a question of law arising on proved or admitted facts and it i s determinative of
the case. See State v. Hirsh , 310 Kan. 321, 338, 446 P.3d 472 (2019 ).

This court reviews the propriety of the sanction for a probation violation imposed by the district court for an abuse of discretion. State v. Coleman , 311 Kan. 332, 334, 460 P.3d 828 (2020) . Judicial discretion is abused if the judicial decision (1) is arb itrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of
fact. State v. Gonzalez

- Sandoval , 309 Kan. 113, 126

- 27, 431 P.3d 850 (2018)

. The party asserting the district court abused its discretion bears the burden of proving it. State v.
Thomas , 307 Kan. 733, 739, 415 P.3d 430 (2018).

Combs first argues that the district court erred in revoking his probation because it impermissibly applied the 2019 amendment to his case. Combs argues that the district court should have applied the intermediate sanctioning scheme in effect on August 21, 2018, the date he committed the offenses. Thus, Combs argues that the district court should have applied the 2018 version of the intermediate sanctioning scheme and imposed either a 120

- or 180

- day prison sanction rather than revoke his probation.

Combs filed a Supreme Court Rule 6.09 (2020 Kan. S. Ct. R. 39) letter of additional authority citing State v. Dominguez , 58 Kan. App. 2d. 630 , 473 P.3d 932 (2020) , as supporting his argument that the district court erred in applying the 2019
amendment. In Domingu ez , the probationer argued that the district court erred in revoking her probation because it relied on the 2019 amendment instead of the law in
effect when she committed her crimes. T his court agreed with Dominguez and held that
the 2019 amendment could n ot be applied retroactively to a probationer whose crimes of
conviction occurred before the 2019 amendment became effective. 58 Kan. App. 2d. 63 7

. In so holding, this court applied the Kansas Supreme Court's reasoning in Coleman that
the 2017 amendment to K.S.A . 22

- 371 6 creating the dispositional departure exception to5 int ermediate sanctions applies only to crimes committed on or after July 1, 201 7, the
effective date of the amendment. See Coleman , 311 Kan. at 337.

Because Combs committed his crimes in August 2 018, the 2019 amendment to the intermediate sanctioning scheme cannot be applied to his case. In fact, the State concedes that the 2019 amendments do not apply to Combs' case. Thus, Combs correctly asserts
that K.S.A. 2018 Supp. 22

- 3716 governs his revocat ion. Under K.S.A. 2018 Supp. 22

- 3716(c)(1)( C )

- (D) , the district court must impose either a 120

- day or a 180

- day sanction before revoking a defendant's probation . The district court did not do so here.

But there are exceptions that allow the district court to revoke a defendant's probation without imposing intermediate sanctions including when the c ourt finds that the safety of members of the public will be jeopardized or that the welfare of the offender
will not be served by such a sanction. K.S.A. 2018 Su pp. 22

- 3716(c)(9)(A)

. The State argues that the district court invoked this exception here because " [i]t was clear from the statements of the [district] court that the judge was concerned for the safety of the public, and made a specific finding that the d efendant would not be served by imposing sanctions because there was no way to make community corrections work for [Combs ]. " Combs counters that the district did not invoke the public safety /offender welfare exception
because the district court did not cite the exception and it did not make particular findings to apply the exception to Combs ' case.

Combs correctly asserts that the district court did not invoke the public safety exception. At the hearing, the district court pointed out that both Combs ' current crimes and his criminal history contained convictions for possession of a firearm. The district judge stated that he was not surprised that Combs ' used drugs since he is an addict. But
the district court did not cite the public safety /offender welfare exception or make any explicit findings about how the safety of the public would be jeopardized or how Combs '
welfare would not be served if he remained on probation. A district court's findings are6 not suff iciently particular to invoke the public safety /offender welfare exception if the appellate court must infer the reasons to support the exception. State v. Duran , 56 Kan. App. 2d 1268, 1275, 445 P.3d 761 (2019) , rev. denied 312 Kan. __ (August 31, 2020).

Likewise, it appears that the district court could have relied on the dispositional departure exception to revoke Combs ' probation without imposing another intermediate sanction. See K.S.A. 2018 Supp. 22

- 3716(c)(9)(B). The dispositi onal departure exception applies to Combs ' case because his crimes were committed on or after July 1, 2017. See
Coleman , 311 Kan. at 337. But under the statute, the district court may revoke the defendant's probation by relying on this exception. Here, the district court did not invoke this statutory ground when it revoked Combs ' probation and order ed him to serve a
modified sentence , so we cannot rely on this exception to uphold the d istrict court's order.
See Duran , 56 Kan. App. 2d at 1277.

In sum, because Combs committed his crimes in August 2018, the district court erred by revoking his probation without considering a 120

- or 180

- day intermediate
sanction in K.S.A. 2018 Supp. 22

- 37 16(c) (1)(C)

- (D) . Combs argues that we should remand his case with directions for the district court to reinstate his probation after he serves an appropriate intermediate sanction. We disagree that this is the proper remedy. Instead, we vacate the district court's order revoking Combs ' probation and imposing the modified sentence and remand for a new dispositional hearing at which the district court must either impose a 120

- or 180

- day sanction or find a valid statutory ground to
circumvent it . See Duran , 56 Kan. App. 2d at 1277; Dominguez , 473 P.3d at 937. Because we vacate the order imposing the modified sentence, we need not address
Combs ' challenge to the modified sentence and the postrelease supervision term.

Sentence v acated and case remanded with directions.