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NOT DESIGNATED FOR PUBLICATION

No. 120,718

 

 

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

MICHAEL TODD LAWRENCE,

Appellant.

MEMORANDUM OPINION

Appeal from Montgomery District Court; JEFFREY GETTLER, judge. Opinion filed July 24, 2020. 

Affirmed in part, reversed in part, sentence vacated, and case remanded with directions.

Kasper Schirer, of Kansas Appellate Defender Office, for appellant.

Michael J. Duenes, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., HILL and GARDNER,JJ.

PER CURIAM: Michael Lawrence contends the district court had to make 

particularized public-safety or offender-welfare findings from the bench if the court 

wanted to bypass the intermediate sanctions required by K.S.A. 2018 Supp. 22-

3716(c)(9)(A) when it revoked his probation. While making some general findings, the 

court sent Lawrence to prison rather than impose lesser sanctions. But because the court 

invoked the new crime exception under K.S.A. 2018 Supp. 22-3716(c)(8)(A) on its 

journal entry of the probation violation hearing, we affirm. 
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Case History

Lawrence pled no contest to distribution of marijuana, a severity level 4 drug 

felony, and possession of drug paraphernalia with intent to distribute, a severity level 5

drug felony. The court found Lawrence's criminal history score to be C based on a prior 

conviction for possession of a hallucinogenic drug under K.S.A. 2016 Supp. 21-5706. 

The court sentenced Lawrence to a total prison sentence of 54 months but granted 

probation for 18 months. A condition of Lawrence's probation was that he refrain from 

violating the law.

Then, later in 2018, the State sought to revoke Lawrence's probation based on 

several technical violations and a new conviction for possession of marijuana. The court 

accepted Lawrence's stipulation to several of the probation violations, including the new 

conviction for possession of marijuana. At the disposition hearing, Lawrence asked the 

court to impose a sanction and allow him to continue on probation. Lawrence testified on 

his own behalf. The State asked the court to send Lawrence to prison. The State called 

two of Lawrence's probation officers to testify. Lawrence provided a urine sample and it

tested positive for cannabinoid and cocaine. The test results did not favorably impress the 

court.

From the bench, the court then imposed Lawrence's prison sentence. The court 

stated that it was close to reinstating probation, but the "nail in the coffin" was the 

positive UA. The court found that Lawrence had not taken treatment and probation 

seriously. The court told Lawrence that "I wouldn't say that you haven't done anything, 

but you haven't done enough to convince me that if I give you another opportunity that 

you're going to be successful on probation." The State requested a specific finding that 

"he's not amenable to probation." The court replied that it would make that finding based 

on the testimony and the UA result. "It's clear to me that Mr. Lawrence is not amenable to 
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probation despite the multiple opportunities he's been given. I don't think that he would 

be successful in the future." 

From the bench the court did not directly invoke any of the statutory reasons to 

bypass intermediate sanctions under K.S.A. 2018 Supp. 22-3716(c). And that is where 

Lawrence hangs his hat in this appeal.

To us, Lawrence argues the court had to make particularized findings and it did not do 

so.

Lawrence argues that the court invoked the public safety or public welfare 

exception from the bench but did not make the particularized findings required by K.S.A. 

2018 Supp. 22-3716(c)(9)(A). He argues the court's invocation of the new crime 

exception on the journal entry was ineffective because it differed from the court's 

pronouncement from the bench, citing Abasolo v. State, 284 Kan. 299, Syl. ¶ 3, 160 P.3d 

471 (2007), and State v. Mason, 294 Kan. 675, 677, 279 P.3d 707 (2012). The State 

responds that the rationale the district court gave from the bench did not differ from the 

rationale in the journal entry. And the State also argues that those cases cited by 

Lawrence do not mean that the rationale the district court invokes from the bench for 

imposing the offender's underlying sentence controls when it differs from the rationale 

found in the journal entry. 

Once a probation violation has been established, the decision to revoke probation 

rests within the sound discretion of the district court. State v. Skolaut, 286 Kan. 219, 227-

28, 182 P.3d 1231 (2008). A judicial action constitutes an abuse of discretion if the action 

is: 

• arbitrary, fanciful, or unreasonable; 

• based on an error of law; or 

• based on an error of fact. 
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State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018). Lawrence bears the burden 

to show an abuse of discretion. See State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 

(2018). 

It is true, however, that K.S.A. 2018 Supp. 22-3716(c) limits a court's discretion in 

deciding how to sanction a probation violator. Under the statute, a sentencing court 

should impose a series of intermediate, graduated sanctions before ordering a probation 

violator to serve his or her underlying sentence, unless certain exceptions apply. But a 

court need not impose any intermediate sanction if the offender "commits a new felony or 

misdemeanor while the offender is on probation" or if the court "finds and sets forth with 

particularity the reasons for finding that the safety of members of the public will be 

jeopardized or that the welfare of the offender will not be served by such sanction." 

K.S.A. 2018 Supp. 22-3716(c)(8)(A), (c)(9)(A).

The law has grown on this point. It is now well-established that the court must 

make public-safety and offender-welfare findings "with particularity." See State v. 

Duran, 56 Kan. App. 2d 1268, 1272-76, 445 P.3d 761 (2019). The particularity 

requirement is not met when the appellate court must imply the reasons why the safety of 

the public would be jeopardized or why the offender's welfare would not be served by an 

intermediate sanction. The court must give "distinct rather than general" reasons "with 

exactitude of detail." State v. Clapp, 308 Kan. 976, Syl. ¶ 4, 425 P.3d 605 (2018). The 

decision to revoke probation under K.S.A. 2018 Supp. 22-3716(c)(9)(A) "requires more 

than a generalized finding that the defendant is not amenable to probation." Duran, 56 

Kan. App. 2d at 1275. 

The issue here seems clear. Can we affirm the district court when it properly 

invoked the new crime exception on the journal entry, but it failed to specifically mention 

that exception from the bench as part of its rationale for imposing the prison sentence?

Under these facts, we hold that we can.
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This is not a case when the defendant's sentence or terms of probation pronounced 

from the bench differed from those stated in the journal entry. The court here did not state 

from the bench which statutory provision gave it the legal authority to impose the 

sentence that it did. Some of the statutory bypass provisions specifically require 

particularized findings from the bench, such as the public-safety and offender-welfare 

exceptions. But the bypass provision at issue—the new-crime exception—does not 

require particularized findings from the bench. 

That provision states: "If the offender commits a new felony or misdemeanor 

while the offender is on probation, . . . the court may revoke the probation . . . without 

having previously imposed a sanction." K.S.A. 2018 Supp. 22-3716(c)(8)(A). 

The facts are important. The record reflects that the court accepted Lawrence's 

stipulation to committing a new crime at the probation violation hearing. The court 

specifically checked the appropriate box and wrote on the journal entry that Lawrence 

had violated the law. And the sentence pronounced from the bench (54 months in prison) 

did not differ from the sentence written on the journal entry. Thus, the district court's 

revocation of Lawrence's probation and imposition of his underlying sentence complied 

with K.S.A. 2018 Supp. 22-3716(c)(8)(A). A panel of this court came to the same 

conclusion in State v. Phillips, No. 115,052, 2017 WL 262038, at *2-3 (Kan. App. 2017) 

(unpublished opinion). 

A criminal history question has arisen.

Lawrence argues that the State did not meet its burden to prove his prior 

conviction for possession of a hallucinogenic drug was a felony offense rather than a 

misdemeanor, leading to an incorrect criminal history score and an illegal sentence.

Lawrence's presentence investigation report showed he had a 2016 conviction for 

possession of a hallucinogenic drug, citing K.S.A. 21-5706. The PSI report classified this 
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prior conviction as a felony. But possession of a hallucinogenic drug is only a felony 

under K.S.A. 2016 Supp. 21-5706(b)(3), (c) on a second or subsequent conviction for a 

similar offense. And the PSI report here did not show that Lawrence had been convicted 

for any other drug crimes. Thus, the State did not carry its burden to prove that 

Lawrence's prior conviction for possession of a hallucinogenic was a felony. See State v. 

Obregon, 309 Kan. 1267, 1275, 444 P.3d 331 (2019). 

If Lawrence's prior drug conviction was a misdemeanor, that would change his 

criminal history score from C to D because it was the only nonperson felony listed on the 

PSI report. See K.S.A. 2019 Supp. 21-6805(a). According to the PSI report, Lawrence 

had one prior person felony, one prior nonperson felony, and one prior nonperson 

misdemeanor. 

Both parties agree that we must vacate Lawrence's sentence and remand this issue 

to the district court to determine whether the State can meet its burden of proof to show 

the conviction was a felony and, if not, to resentence him in accordance with the correct 

criminal history score.

The revocation of Lawrence's probation is affirmed. We vacate his sentence and 

remand to the district court for a determination of Lawrence's proper criminal history 

score and imposition of a new sentence. 

Affirmed in part, reversed in part, sentence vacated, and case remanded with 

directions.