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NOT DESIGNATED FOR PUBLICATION

No. 119,822

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

MARK ANDREW RAIMO,

Appellant.

MEMORANDUM OPINION

Appeal from Johnson District Court; THOMAS M. SUTHERLAND, judge. Opinion filed April 3, 

2020. Affirmed.

Heather Cessna, of Kansas Appellate Defender Office, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek 

Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., GREEN and BUSER, JJ.

PER CURIAM: Mark Andrew Raimo appeals the district court's order revoking his 

probation and requiring him to serve his underlying prison sentence. Raimo contends the 

district court violated K.S.A. 2019 Supp. 22-3716 and his constitutional right to due 

process guaranteed by the Fourteenth Amendment to the United States Constitution and 

§ 18 of the Kansas Constitution Bill of Rights. First, Raimo alleges that although he 

stipulated to violating his probation, the district court erred by failing to verbally state 

that he violated his probation. Next, Raimo claims that despite his agreement to serve the
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underlying prison sentence, the district court erred by failing to pronounce its imposition 

of the underlying sentence. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On April 29, 2016, Raimo pled guilty to aggravated burglary, violating a 

protective order, contributing to a child's misconduct, and three counts of felony theft. 

Raimo received a controlling sentence of 72 months in prison. However, the district court 

granted a dispositional departure and placed Raimo on probation for a term of 36 months.

In 2017, Raimo was arrested for committing numerous traffic violations—

including felony fleeing and eluding—after driving 122 miles per hour in a 65 mile-perhour speed zone. After Raimo's arrest, the State filed a motion to revoke his probation in 

the 2016 case, alleging he committed crimes while on probation and failed to pay court 

costs. Raimo and the State entered into a plea agreement in which (1) Raimo would 

stipulate that he violated his probation and agree to serve the underlying sentence in the 

2016 case, (2) Raimo would plead guilty to fleeing and eluding in the 2017 case, and (3) 

the State would dismiss two charges in the 2017 case.

At a probation revocation hearing, Raimo stipulated to violating his probation and 

agreed to serve the underlying prison sentence in keeping with the plea agreement. The 

following colloquy occurred with the district judge:

"THE COURT: . . . [I]t is my understanding that today you wish to waive your 

right to a hearing in that case and stipulate that you have in fact violated your probation 

as alleged by the State in its motion; is that correct?

"[RAIMO]: Yes, sir.

"THE COURT: All right. I will accept your stipulation and your waiver of 

hearing. And, Mr. Raimo, you heard me have this conversation. Is it your decision to go 

ahead and simply serve your time in that case?
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"[RAIMO]: Yes, sir.

. . . .

"THE COURT: And I'm sorry if I'm having a brain cramp, here. Do I need to put 

down that that's consecutive to [the 2017 case]?"

In accordance with Raimo's stipulation, the district court in a journal entry found 

that Raimo violated his probation by committing a new crime. As a result, the district 

court revoked Raimo's probation and ordered him to serve his underlying prison sentence. 

Raimo appeals the revocation of his probation.

REVOCATION OF PROBATION

Raimo contends the district court erred when it revoked his probation and he 

requests a new probation violation hearing. Raimo claims the district court violated 

K.S.A. 2019 Supp. 22-3716 and his due process rights during the probation violation 

hearing because the court (1) failed to expressly state that he violated his probation and 

(2) failed to pronounce that it was imposing the underlying sentence.

Preservation

Raimo recognizes that he raises this issue for the first time on appeal. In general, 

issues not raised before the district court may not be raised for the first time on appeal. 

State v. Ross, 310 Kan. 216, 227, 445 P.3d 726 (2019). However, our Supreme Court has 

recognized three exceptions to this rule: (1) The newly asserted theory involves only a 

question of law arising on proved or admitted facts and is determinative of the case; (2) 

consideration of the theory is necessary to serve the ends of justice or to prevent the 

denial of fundamental rights; and (3) the district court's ruling is right but its reasoning is 

wrong. State v. Brown, 309 Kan. 369, 375, 435 P.3d 546 (2019). Raimo argues that we 

should consider the merits of his claim under the first and second exceptions.
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The issue of whether the district court violated K.S.A. 2019 Supp. 22-3716 and

Raimo's due process rights when revoking his probation is a question of law based on 

proved facts and is determinative of the case. The issue is based on the undisputed facts 

contained in the transcript of Raimo's probation revocation hearing. When determining 

whether a district court complied with due process requirements in revoking a defendant's 

probation, our court applies an unlimited standard of review. State v. Hurley, 303 Kan. 

575, 580, 363 P.3d 1095 (2016). Likewise, issues involving statutory interpretation 

present a question of law over which appellate courts have unlimited review. State v. 

Alvarez, 309 Kan. 203, 205, 432 P.3d 1015 (2019).

We find that Raimo's claim to an exception has merit. As a result, we will consider 

Raimo's appeal.

Analysis

A district court's decision to revoke probation involves two steps: (1) A factual 

determination that the probationer has violated a condition of probation; and (2) a 

discretionary determination as to whether the proved violation warrants revocation of 

probation. State v. Skolaut, 286 Kan. 219, 227, 182 P.3d 1231 (2008). This two-step 

approach is reflected in K.S.A. 2019 Supp. 22-3716(b)(3)(A), which provides that "[1] if 

. . . a violation is established, [2] the court may impose the violation sanctions as 

provided in subsection (c)(1)."

When reviewing a due process claim, we first determine whether a protected 

liberty or property interest is involved. Village Villa v. Kansas Health Policy Authority, 

296 Kan. 315, 331, 291 P.3d 1056 (2013). While the decision to impose probation is an 

act of grace, once a defendant is granted probation, "he or she acquires a conditional 

liberty interest which is subject to substantive and procedural due process limits on its 
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revocation." Hurley, 303 Kan. at 581. Since a protected interest is implicated, we must 

determine the nature and extent of the process that is due. Village Villa, 296 Kan. at 331.

Due process is flexible in that not all situations calling for procedural safeguards 

call for the same kind of procedure. See In re Care & Treatment of Ellison, 305 Kan. 

519, 526, 385 P.3d 15 (2016). But a due process violation exists only if the complaining 

party shows that he or she was denied a specific procedural protection to which he or she 

is entitled. See In re K.E., 294 Kan. 17, 22, 272 P.3d 28 (2012). The basic elements of 

procedural due process are notice and "the opportunity to be heard at a meaningful time 

and in a meaningful manner." In re Care & Treatment of Ellison, 305 Kan. at 526. When 

determining what due process protections are required, this court examines three factors:

"(1) the private interest affected by the official action; (2) the risk of erroneous 

deprivation of that interest through the procedures used and the probable value, if any, of 

additional or substitute procedural safeguards; and (3) the government's interest, 

including the function involved and the fiscal and administrative burdens the additional 

or substitute procedural requirements would entail." In re Care & Treatment of 

Ontiberos, 295 Kan. 10, 22, 287 P.3d 855 (2012).

The revocation of a defendant's probation is not part of a criminal prosecution and, 

therefore, the full panoply of rights in a criminal case is not applicable to a probation 

revocation proceeding. State v. Galaviz, 296 Kan. 168, 174, 291 P.3d 62 (2012). The 

United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 488-89, 92 S. Ct. 

2593, 33 L. Ed. 2d 484 (1972), established minimum due process rights for parolees and 

later extended those rights to probationers in Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 

S. Ct. 1756, 36 L. Ed. 2d 656 (1973). As formulated by our Supreme Court:

"'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 cross-
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examine 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.'" Hurley, 303 Kan. at 582

(quoting State v. Billings, 30 Kan. App. 2d 236, 238, 39 P.3d 682 [2002]).

Our Supreme Court has held that the statute governing probation revocations—

K.S.A. 22-3716—satisfies all constitutional requirements necessary in probation 

revocation proceedings. State v. Rasler, 216 Kan. 292, 296, 532 P.2d 1077 (1975).

District Court Finding that Raimo Violated His Probation

Raimo claims the district court violated his statutory and due process rights during 

his probation revocation hearing by failing to orally state that he violated his probation. 

However, Raimo fails to show that a verbal pronouncement by the district court 

specifying that he violated his probation—after Raimo stipulated to that same fact—is a 

procedural protection required by due process. Raimo argues that a district court's failure 

to make factual findings disrupts an appellate court's ability to review district court 

decisions. But this argument is not convincing given that the district court made a factual 

finding in the journal entry that Raimo violated his probation by committing new crimes.

Importantly, the United States Supreme Court in Gagnon did not include oral 

pronouncements of a hearing body's findings in its list of due process rights afforded to 

probationers during a revocation proceeding. Instead, the Court determined that due 

process requires a written statement that cites the reasons for revoking probation, which 

was satisfied in this case when the district court filed the journal entry. See State v. 

Kennon, No. 102,936, 2010 WL 3662890, at *2 (Kan. App. 2010) (unpublished opinion).

Moreover, a verbal pronouncement that a defendant violated his probation is not 

required by K.S.A. 2019 Supp. 22-3716. The statute provides that a district court may 

impose certain sanctions "if . . . a violation is established." K.S.A. 2019 Supp. 22-
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3716(b)(3)(A), (c)(1). When the district court accepted Raimo's stipulation that he 

violated his probation, a probation violation was established and the district court could 

impose a sanction as a result of that violation. See State v. Bannon, 45 Kan. App. 2d 

1077, Syl. ¶ 6, 257 P.3d 831 (2011) ("Parties are bound to their stipulations, and a trial 

court or appellate court must render judgment based on those stipulated facts.").

Our Supreme Court considered a comparable issue in State v. Phillips, 299 Kan. 

479, 492-97, 325 P.3d 1095 (2014), where the court rejected Phillips' argument that the 

criminal mistrial statute requires an oral pronouncement from the bench that formally 

declares a mistrial. The mistrial statute at issue provided that "[w]hen a mistrial is 

ordered, the court shall direct that the case be retained on the docket for trial . . . ." K.S.A. 

22-3423. The district court in Phillips noted that the jury was deadlocked, discharged the 

jury, and discussed the scheduling of a retrial without formally declaring a mistrial on the 

record. The Kansas Supreme Court determined that K.S.A. 22-3423 does not require the 

district court to use specific words or a specific pronouncement which uses the term 

mistrial. Instead, the court held that the district court's words and actions in discharging 

the jury had the effect of declaring a mistrial and amounted to the functional equivalent 

of an order. 299 Kan. at 497.

Like the mistrial statute analyzed in Phillips, K.S.A. 2019 Supp. 22-3716 does not 

require the use of specific words in finding that a defendant violated his or her probation. 

Moreover, even if the district court were required to pronounce that Raimo committed a 

probation violation, the court's expressed acceptance of his stipulation amounted to the 

functional equivalent of a probation violation finding.

We hold the district court did not violate K.S.A. 2019 Supp. 22-3716 or Raimo's 

due process rights by failing to verbally pronounce that he violated his probation.
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Oral Pronouncement Imposing Raimo's Underlying Sentence

Raimo next argues that the district court erred during his probation revocation 

hearing by failing to orally pronounce that it was imposing Raimo's underlying prison 

sentence.

Our court has previously rejected the argument that a district court must verbally 

pronounce the disposition of a defendant's sentence at a revocation hearing. State v. 

Orozco, No. 111,001, 2014 WL 6490239, at *2-3 (Kan. App. 2014) (unpublished 

opinion). In Orozco, the State asked the district court to revoke Orozco's probation and 

impose his original sentences. The district court revoked Orozco's probation, but failed to 

pronounce that it imposed his underlying sentences. Relying on several unpublished 

opinions, our court rejected Orozco's argument that a district court must pronounce an 

express term of imprisonment at a probation violation hearing. Our court reasoned that 

(1) nothing in K.S.A. 22-3716 requires the district court to pronounce the sentence when 

revoking a defendant's probation, and (2) the record was clear that the district court 

granted the State's request to revoke Orozco's probation and ordered him to serve his 

original underlying sentence. 2014 WL 6490239, at *3.

Raimo asserts that Orozco was wrongly decided. He claims that due process 

requires an oral pronouncement of an imposed sentence despite the lack of any statutory 

requirement in K.S.A. 22-3716. Moreover, Raimo asserts that the district court's failure to 

verbally pronounce its imposition of the underlying sentence impedes his ability to 

effectively seek appellate review of that decision. But Raimo does not explain how 

appellate review of the district court's decision to impose the underlying sentence is 

impeded due to the lack of an oral pronouncement of the same disposition.

Contrary to Raimo's argument, our Supreme Court has consistently held that the 

procedural protections in K.S.A. 22-3716 satisfy all due process requirements for
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probation revocation proceedings. Hurley, 303 Kan. at 582; Rasler, 216 Kan. at 296. Our 

court is duty-bound to follow Kansas Supreme Court precedent unless there is some 

indication that the court is departing from its previous position. State v. Rodriguez, 305 

Kan. 1139, 1144, 390 P.3d 903 (2017). We find no indication that our Supreme Court is 

departing from its previous position. Accordingly, we hold that due process does not 

require the procedural step not contained in K.S.A. 22-3716 of orally pronouncing the 

imposition of a defendant's sentence at a revocation hearing.

Moreover, the record is clear that the district court followed the parties' agreement 

and ordered Raimo to serve his original underlying sentence upon revoking his probation. 

The district court asked Raimo whether he agreed to "simply serve [his] time" in the case. 

After Raimo responded, "Yes, sir," both defense counsel and the State confirmed that 

Raimo agreed to serve the underlying prison sentence. After the hearing, the district court 

filed a journal entry ordering Raimo to serve the original underlying sentence because he 

committed a new crime.

Accordingly, the district court did not violate Raimo's statutory or due process 

rights during the probation revocation hearing by failing to verbally pronounce that it was 

imposing the underlying sentence.

Affirmed.