1

No. 120,179

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

RODRIGO FRANCISCO GONZALEZ,

Appellant.

SYLLABUS BY THE COURT

1.

The essential principle embodied in the Due Process Clause of the Fourteenth 

Amendment to the United States Constitution is this: The government may not deprive 

a person of a property right or a liberty interest without affording that person the 

opportunity to be heard in a meaningful way and at a meaningful time to avert a 

wrongful deprivation of that right or interest.

2.

Constitutional due process is an especially elastic concept in that the protections 

required vary depending upon the importance of the specific property right or liberty 

interest at stake.

3.

The State may not revoke the probation of a convicted felon who is not mentally 

competent at the time of the revocation hearing.
2

4.

Competency for due process purposes entails the capacity to understand the 

nature and object of the proceedings, to consult with a lawyer, and to assist in presenting 

a defense.

5.

A district court has the inherent authority to order a competency evaluation as a 

means of extending constitutional due process to a probationer facing revocation.

Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed December

27, 2019. Remanded with directions.

Hope Faflick Reynolds and Michelle A. Davis, of Kansas Appellate Defender Office, for 

appellant. 

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, 

attorney general, for appellee.

Before POWELL, P.J., PIERRON and ATCHESON, JJ.

ATCHESON, J.: Constitutional due process protections preclude district courts 

from revoking the probation of convicted felons who have become mentally incompetent 

and ordering they serve their underlying sentences of imprisonment. The deprivation of 

liberty inflicted on those probationers is sufficiently grave that they must be able to 

understand and meaningfully participate in the revocation proceedings. The Due Process 

Clause of the Fourteenth Amendment to the United States Constitution requires nothing 

less.

The Sedgwick County District Court may have given Rodrigo Gonzalez 

considerably less when it revoked his probation and sent him to prison despite legitimate 
3

concerns he may not have been competent during the revocation hearing. The district 

court refused to order a competency evaluation for Gonzalez because the statutory 

processes for those evaluations do not explicitly apply to probation revocation 

proceedings. But the absence of a statutory device cannot negate a fundamental 

constitutional right. The district court, therefore, erred in revoking Gonzalez' probation 

without determining he was mentally competent. The error, however, would be harmless 

if Gonzalez were competent then. We, therefore, remand the case for further 

proceedings, including either a retrospective or present competency evaluation.

FACTUAL AND PROCEDURAL HISTORY

We outline some background facts and procedural history to put this appeal in 

context. The State charged Gonzalez with felony battery of a law enforcement officer in 

April 2017 because he refused to remove his shoes while he was being booked into the 

Sedgwick County jail and then elbowed a corrections officer attempting to move him to 

a "safety cell" until he complied. The record indicates Gonzalez was 37 years old and 

had numerous convictions for misdemeanors and traffic offenses in Dodge City, 

Arkansas City, and Wichita over the course of his adult life. He also had a felony 

conviction for battery of a law enforcement officer.

Early in the case, the lawyer appointed to represent Gonzalez requested an 

evaluation to determine if he was mentally competent to stand trial. As provided in 

K.S.A. 22-3202, the district court ordered an evaluation and duly received a report from 

the mental health professional who examined Gonzalez. Following a hearing in June 

2017, the district court entered an order finding Gonzalez to be competent. Neither the 

report nor a transcript of that hearing is part of the record on appeal.

The State and Gonzalez' lawyer reached an agreement calling for Gonzalez to 

plead guilty with a sentencing recommendation to the district court for a dispositional 
4

departure to probation. The written plea agreement acknowledged Gonzalez' history of 

mental illness and a related, though unidentified, seizure disorder as factors that 

contributed to and mitigated his wrongful conduct in the jail. The agreement also

recognized the availability of appropriate health care in the community as a ground for 

the recommended sentence.

At a hearing in January 2018, the district court accepted Gonzalez' guilty plea. 

The district court later sentenced Gonzalez to 52 months in prison and, consistent with 

the parties' agreement, granted the motion for a dispositional departure to probation for 

36 months. 

In late July, the district court issued a warrant for Gonzalez because he had tested 

positive for alcohol several times, violating the terms of his probation. Gonzalez was 

taken into custody on the warrant, and the district court appointed a lawyer to represent 

him at a probation revocation hearing. 

At the hearing about a month later, the lawyer informed the district court that 

Gonzalez had refused to meet with her in the jail several days earlier. The lawyer 

indicated she was having difficulty communicating with Gonzalez just before the 

hearing. The district court asked Gonzalez directly if he understood what was going on. 

He responded:

"This is the first time I have been on this case. I don't know what you are trying 

to tell me. I am just hearing you, but I am not paying attention about it, sir. That's all. I 

don't know.

"If I have to challenge it, I will challenge it. This is the first time I have ever done 

this."

Gonzalez' response may be fairly characterized at the very least as diffuse and perhaps 

as disordered. It was not, however, patently irrational or illustrative of a complete break 
5

with reality. The district court took a brief recess so Gonzalez and his lawyer could 

confer. 

When the hearing reconvened, the district court established that the problem was 

not a language barrier. Gonzalez' lawyer explained that Gonzalez did not seem to 

appreciate what was going on. And, as a result, the lawyer questioned whether Gonzalez 

was mentally competent. She told the district court that were this the beginning of a 

criminal case rather than a probation revocation hearing, she would likely ask for a 

competency evaluation. 

The district court suggested that Gonzalez had to be mentally competent to go 

forward with the hearing. His lawyer agreed. The prosecutor objected and submitted that 

no statutory authority permitted a stay for a competency hearing after a defendant had 

been adjudged guilty. The district court postponed the revocation hearing for several 

days to allow the lawyers to look into how the matter should be handled. The district 

court held a short hearing five days later and simply set the probation revocation for an 

evidentiary hearing the following week. The lawyers did not bring up Gonzalez' 

competency, and the district court did not address it.

At the start of the evidentiary hearing, Gonzalez' lawyer again raised concerns 

about his mental competency and pointed out that he had not been evaluated. The district 

court responded that it had been "informed" there were no procedures for competency 

evaluations after a defendant's conviction. So the district court concluded "unless that 

has changed, the matter [of Gonzalez' competency] will remain unresolved." 

The State then presented three witnesses and two exhibits to prove the alleged 

probation violations. Gonzalez' lawyer cross-examined those witnesses but offered no 

additional evidence. Gonzalez did not testify. Based on the evidence, the district court 

found that Gonzalez had consumed alcohol multiple times in violation of the conditions 
6

of probation. In considering what disposition to make, the district court mentioned both 

Gonzalez' rather lengthy list of criminal convictions and his mental health issues. On 

balance, the district court concluded Gonzalez was not amenable to continued probation 

and ordered that he serve his 52-month prison sentence. Gonzalez has appealed that 

ruling.

LEGAL ANALYSIS

For his only issue on appeal, Gonzalez asserts he had a constitutionally protected 

due process right to be mentally competent at his probation revocation hearing. We 

agree. In turn, Gonzalez says the appropriate remedy requires the revocation order be set 

aside and he be given a new hearing. As we explain, that may not be the best tailored 

remedy. But, with some qualification, it provides an acceptable alternative.

At the outset, we put to rest the State's argument on appeal that Gonzalez didn't 

preserve his constitutional claim in the district court and should not be permitted to raise 

it now. Gonzalez' lawyer twice questioned Gonzalez' mental competence and requested 

relief from the district court. The record in the district court lent support to the lawyer's 

concern—the circumstances of the underlying crime were suggestive of some degree of 

mental decompensation and the explicit terms of the plea agreement acknowledged 

Gonzalez' chronic mental health issues. 

Although the lawyer did not cite any particular legal source—constitutional or 

otherwise—for Gonzalez' right to be sufficiently mentally engaged to participate 

meaningfully in the hearing, she did assert that right. The district court acknowledged 

the issue and recognized a potential problem without an apparent solution. The lawyer's 

failure to mention the words "constitutional" or "due process" in her discussion with the 

district court does not amount to a waiver or forfeiture of Gonzalez' Fourteenth 

Amendment rights. See Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 
7

2d 274 (1969) (waiver of constitutional right must be intelligently and understandingly 

made and will not be inferred); State v. Bunyard, 307 Kan. 463, 470, 410 P.3d 902 

(2018) (court will not presume defendant's acquiescence in loss of fundamental right). 

We, therefore, may consider the issue.

The Right Considered

The essential principle embodied in the Due Process Clause is this: The 

government may not deprive a person of a property right or a liberty interest without 

affording that person the opportunity to be heard in a meaningful way and at a 

meaningful time to avert a wrongful deprivation of that right or interest. Mathews v. 

Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) ("The fundamental 

requirement of due process is the opportunity to be heard 'at a meaningful time and in a 

meaningful manner.'"); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 

313, 70 S. Ct. 652, 94 L. Ed. 865 (1950) (The Due Process Clause "at a minimum" 

requires that "deprivation of life, liberty, or property by adjudication be preceded by 

notice and opportunity for hearing appropriate to the nature of the case."); Taylor v. 

Kansas Dept. of Health & Environment, 49 Kan. App. 2d 233, Syl. ¶ 4, 305 P.3d 729 

(2013). Constitutional due process is an especially elastic concept in that the protections 

required vary depending upon the importance of the specific property right or liberty 

interest at stake. Not surprisingly, those government actions aimed at involuntarily 

confining a person—an especially stringent deprivation of liberty—call for exacting due 

process protections. See Hamdi v. Rumsfeld, 542 U.S. 507, 529, 124 S. Ct. 2633, 159 L. 

Ed. 2d 578 (2004) ("[T]he most elemental of liberty interests [is] the interest in being 

free from physical detention by one's own government."); Foucha v. Louisiana, 504 U.S. 

71, 78-80, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992) (government effort to involuntarily 

commit individual because of mental illness implicates substantive liberty rights and 

triggers procedural due process protections). 
8

Probationers facing revocation and imprisonment on felony convictions 

indisputably have a liberty interest triggering constitutional due process protections. 

Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); State 

v. Hall, 287 Kan. 139, 143, 195 P.3d 220 (2008). Because they already have been 

convicted of crimes and confront the loss of a sentencing disposition that spared them 

incarceration, probationers are not entitled to the same due process protections as 

defendants with impending trials to determine their guilt or innocence. 411 U.S. at 781. 

The Gagnon Court drew heavily from Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 

2593, 33 L. Ed. 2d 484 (1972), in which it considered the due process requirements for

resolving disputed parole violations. In Gagnon, the Court identified the constitutionally 

necessary components of due process in a probation revocation proceeding, borrowing 

directly from Morrissey: (1) written notice of the alleged violations prompting the 

government's request to revoke; (2) disclosure of the evidence upon which the 

government will rely; (3) the right to be heard in person and to present witnesses and 

other evidence to refute the grounds for revocation; (4) the opportunity to confront and 

cross-examine adverse witnesses absent "good cause" to limit or suspend that 

examination; (5) a neutral hearing officer and decisionmaker; and (6) a written statement 

from the fact-finder as to the evidence relied upon and the reasons for revoking 

probation. 411 U.S. at 786. 

Conspicuously missing from the list is a mandatory right to legal representation. 

In Morrissey, the Court declined to address whether parolees had a right to legal 

representation at revocation hearings. 408 U.S. at 489. In Gagnon, the Court concluded 

that the circumstances of a given case would dictate whether a probationer had a due 

process right to appear at a revocation hearing with a lawyer. The Court suggested 

probationers would presumptively be entitled to legal representation if they offered

either "colorable claim[s]" the factual grounds for the revocation were wrong or 

compelling mitigating circumstances weighing against revocation notwithstanding 

proved violations, especially if those circumstances could be considered "complex or 
9

otherwise difficult to develop." And the Court invited the adjudicating authority to take 

into account the ability of a given probationer to effectively speak on his or her own 

behalf, particularly in a "doubtful" case. 411 U.S. at 790-91. 

Extracted from the rarified confines of its origin, the case-by-case approach to 

legal representation seems impractical. The risk of error in refusing to allow a given 

probationer to appear with a lawyer would be exceedingly difficult to predict, depending 

largely on an after-the-fact judgment of a reviewing court. The Kansas Legislature has 

effectively eliminated that uncertainty by statutorily permitting probationers to appear 

with counsel at revocation hearings and requiring district courts to appoint lawyers for 

indigent probationers. K.S.A. 2018 Supp. 22-3716(b)(2).

Probation revocations are not considered a critical stage in a criminal prosecution, 

since the probationer has already been convicted and sentenced. See Gagnon, 411 U.S. 

at 781-82. That difference bears on the source and scope of the attendant constitutional 

protections. The protections afforded probationers in Gagnon are judicially identified 

components of a constitutional due process right and are geared to the particular liberty 

interests at stake. So they haven't the same constitutional anchor as express, though 

similar, protections guaranteed accused persons facing criminal prosecution, such as the 

Sixth Amendment rights to be informed of the charges and to confront the government's 

witnesses. Other express constitutional rights accorded criminal defendants have no 

counterparts in the process due probationers under the Fourteenth Amendment, perhaps 

most notably trial by jury.[1]

[1]There is a fair argument that constitutional due process requires that Kansas 

probationers be permitted legal representation at revocation hearings. The revocation 

procedure entails a hearing in the district court where a county or district attorney 

represents the State and the rules of evidence generally apply. See K.S.A. 60-402 (rules 

of evidence govern civil and criminal proceedings, unless specifically relaxed by rule or 

statute); K.S.A. 22-3716(b)(2) (sworn written statements expressly made admissible in 

probation revocation hearings). In Gagnon, the Court envisioned a far less formal 
10

hearing when it outlined the process constitutionally due a probationer, suggesting 

typically an administrative officer without formal legal training would present the 

factual circumstances on behalf of the State to a nonjudicial decisionmaker unhampered 

by strict evidentiary rules. 411 U.S. at 789. Whether one model or the other better 

promotes fairness or advances identifiable penological goals, a probationer without legal 

representation generally would be significantly disadvantaged squaring off against a 

trained lawyer in the more formal hearings mandated in Kansas.

Against that backdrop, the question remains whether the State may revoke the 

probation of a convicted felon who is not mentally competent at the time of the 

revocation hearing. Neither the United States Supreme Court nor the Kansas Supreme 

Court has addressed the issue. Competency for due process purposes entails "the 

capacity to understand the nature and object of the proceedings," to consult with a 

lawyer, and to assist in presenting a defense. Drope v. Missouri, 420 U.S. 162, 171, 95 

S. Ct. 896, 43 L. Ed. 2d 103 (1975); State v. Woods, 301 Kan. 852, 857-58, 348 P.3d 583 

(2015). Although the definition of competency has been enunciated in criminal cases, it 

is not exclusive to those proceedings. See In re Care & Treatment of Sykes, 303 Kan. 

820, Syl. ¶ 3, 367 P.3d 1244 (2016) (recognizing due process definition of competency 

but finding respondent in sexually violent predator commitment proceeding need not be 

competent). Given the liberty interest at stake in a revocation hearing, the near

ineluctable answer to the question we have posed must be in the negative.

Assuming a probationer has no constitutional due process right to a lawyer in a 

given hearing, he or she would bear the burden of representing himself or herself. By 

definition, an incompetent probationer could not do so. To state the obvious, someone 

who doesn't understand what's going on can't very well participate in any meaningful 

way. The statutory right to a lawyer is largely beside the point in assessing the 

constitutional due process protections that must be extended to probationers facing 

revocation. Constitutional rights set a floor that a state may exceed but cannot sink 

below. See State v. Cheever, 306 Kan. 760, 781, 402 P.3d 1126 (2017). Moreover, as we 
11

discuss momentarily, legal representation is not really an adequate due process substitute 

for competency in this context.

The right to a lawyer, whether afforded as a matter of constitutional or statutory 

mandate, entails the concomitant right to effective representation by that lawyer. State v. 

Galaviz, 296 Kan. 168, 176, 291 P.3d 62 (2012). No matter how sharp a lawyer's 

litigation skills, he or she can seldom fashion an effective case for the client without a 

thorough grounding in the facts. And oftentimes a client will be a critical source of 

information in constructing a narrative of the relevant events, identifying knowledgeable 

witnesses, and gathering other evidence. During an evidentiary hearing, the client can 

point out possible errors in witness testimony and may provide his or her own 

(sometimes) persuasive testimony. To again state the obvious, an incompetent client can 

do none of those things. See Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S. Ct. 1373, 

134 L. Ed. 2d 498 (1996) (recognizing interdependence of effective legal representation 

and mental competence of defendant in criminal prosecution); Donald v. State, 930 

N.E.2d 76, 80 (Ind. Ct. App. 2010) ("Without competency, the minimal due process

rights guaranteed to probationers at probation revocation hearings would be rendered 

useless."). So a lawyer representing an incompetent client in a probation revocation will 

be hamstrung in disputing the State's evidence and marshalling any sort of contrary 

defense case. 

With probationers like Gonzalez—who faced a 52-month term of imprisonment 

upon revocation—the liberty interest at stake is sufficiently valuable and the risk of error 

sufficiently grave that due process requires they be competent. We stand alongside many 

other courts in that conclusion.[2] 

[2]Decisions recognizing a probationer or parolee must be competent during 

revocation proceedings include: Hayes v. State, 343 So. 2d 672, 672 (Fla. Dist. Ct. App. 

1977); Donald, 930 N.E.2d at 80; People v. Martin, 61 Mich. App. 102, 108, 232 

N.W.2d 191 (1975); State v. Qualls, 50 Ohio App. 3d 56, 58, 552 N.E.2d 957 (1988); 
12

Commonwealth v. Megella, 268 Pa. Super. 316, 321, 408 A.2d 483 (1979); Thompson v. 

State, 654 S.W.2d 26, 28 (Tex. App. 1983); State ex rel. Vanderbeke v. Endicott, 210 

Wis. 2d 502, 516, 563 N.W.2d 883 (1997). The list is illustrative rather than exhaustive. 

The parties have cited no directly contrary authority, and we have found none. 

The Remedy Considered

As we have outlined, the district court declined to order an evaluation to 

determine if Gonzalez was competent before conducting the evidentiary hearing and 

revoking his probation. There were legitimate reasons to believe Gonzalez may not have 

been competent, as the district court acknowledged. The district court, therefore, erred. 

Because Gonzalez was not evaluated and the record does not obviously establish that he 

was, in fact, incompetent leading up to and during the revocation hearing, we cannot 

determine if the error caused any legal prejudice. Were Gonzalez competent at the time, 

he would not have been deprived of the constitutional process he was due. 

We, therefore, tailor our remedy to that possibility. On remand, the district court 

should determine if a retrospective competency evaluation can be done. That is, an 

evaluation aimed at determining if Gonzalez was competent in late August and early 

September 2018, when the revocation proceedings took place. See State v. Ford, 302 

Kan. 455, Syl. ¶ 8, 353 P.3d 1143 (2015) (recognizing retrospective competency 

evaluation as appropriate remedial tool). The feasibility of a retrospective evaluation 

depends on the overall circumstances and the lapse of time. Such an evaluation would 

require an opinion from a qualified expert witness based on reliable lay accounts of the 

subject's mental capacity at the relevant time, any elucidating medical or psychological 

examinations of the subject, the expert's own observation and assessment of the subject, 

and any other illuminative information. As suggested in Ford, a retrospective evaluation 

is an accommodation to the State, since the alternative typically would require setting 

aside the result of the challenged proceeding. 302 Kan. at 471-72. The State may waive 

the opportunity.
13

If the State agrees to forgo a retrospective competency evaluation of Gonzalez or 

the district court determines such an evaluation is not feasible, then the district court 

must set aside the probation revocation. The district court may proceed with a new 

revocation hearing should Gonzalez be competent. But the district court may not do so if

Gonzalez plainly appears to be incompetent or if it entertains genuine concerns about his

competence based on its observations or the factually grounded representations of his 

lawyer or the prosecutor. As a matter of constitutional due process, the district court then

ought to order a competency evaluation. 

As our discussion implies, we readily conclude a district court has the inherent 

authority to order a competency evaluation as a means of extending constitutional due 

process to a probationer facing revocation. See State v. Gagne, 129 N.H. 93, 97, 523 

A.2d 76 (1986) ("[I]n the exercise of its inherent authority to protect a defendant's 

constitutional rights, a district court may order competency evaluations."); State v. 

Bellardino, 428 S.C. 247, 834 S.E.2d 457, 459 (2019) (Although not mentioned in the 

statute authorizing competency evaluations, a municipal or summary court has the 

inherent authority to order such an evaluation of a defendant charged with an offense 

punishable by a fine of up to $100 or up to 30 days in jail.); State v. Sisouvanh, 175 

Wash. 2d 607, 621, 290 P.3d 942 (2012); cf. Donald, 930 N.E.2d at 80 (Without 

invoking inherent judicial authority specifically, the appellate court held that 

constitutional due process permits a probationer facing revocation to be evaluated for 

mental competence notwithstanding the absence of any statutory authority for an 

evaluation.). As the district court recognized, Kansas has no statutory procedure for 

competency evaluations in criminal cases after defendants have been sentenced. See 

K.S.A. 22-3302(1). But that void cannot be a barrier to effectuating a constitutional 

right. 
14

On remand, the district court may look at the approach outlined in K.S.A. 22-

3301 et seq. as a general template for insuring Gonzalez' due process right to be 

competent at any probation revocation hearing. In other words, those statutes provide 

one design for handling mental competency determinations for probationers, but they are 

not necessarily the conclusive measure of constitutional due process.

If, on remand, the district court ultimately directs that Gonzalez undergo an 

evaluation to determine his present competency and the evaluation shows him to be 

competent, the district court may then conduct a new revocation hearing.

In their briefs, neither the State nor Gonzalez addresses what ought to happen if 

he is not mentally competent. And the issue in some strict sense is not before us, since 

we have no way of knowing what Gonzalez' mental status may be months from now. 

But the circumstance represents a very real possibility bound up with the legal question 

we are required to answer. We, therefore, perceive an obligation to offer at least a 

suggestion on an appropriate course. 

So, do the district courts have the authority to order Gonzalez or someone 

similarly situated restored to mental competence in advance of a probation revocation 

hearing even if restoration required his involuntary commitment to a mental health 

facility for some period? We suppose they do. Gonzalez has a significant liberty interest 

at stake—upon revocation, he has to serve 52 months in prison. The restrictions on his 

liberty in prison are manifestly greater than those he would experience on probation. As 

we have found, the Due Process Clause requires him to be competent when the State 

seeks to revoke his probation. There are, then, two logical dispositions: The district 

court can either order reasonable steps to restore a probationer's mental competence or 

preclude the State from moving forward with the revocation, in effect creating a defense 

of incapacity.
15

There are competing interests of substantial weight to be considered. The 

probationer has a due process right to participate meaningfully in the process. Balanced 

against that right, the State has an obligation to punish wrongdoers. Concomitantly, the 

State can request a convicted defendant's probation be revoked if he or she violates the 

terms of that conditional release in serious ways warranting imprisonment on the 

underlying sentence. See K.S.A. 2018 Supp. 22-3716(c). The balancing suggests a 

district court may order reasonable steps to restore a mentally incompetent probationer 

to competency—a result that substantially impairs neither interest and tends to foster 

both. Those steps may include carefully measured and monitored inpatient treatment. By 

comparison, precluding revocation based on incapacity stymies the State's legitimate 

interest and doesn't necessarily advance a probationer's long term objective of 

completing his or her sentence. 

We have discovered a striking dearth of law addressing how trial courts should 

deal with incompetent probationers facing revocation proceedings. The United States 

Supreme Court, however, has held that a state may involuntarily commit a person 

charged with a felony but incompetent to stand trial to an appropriate facility for a 

reasonable time in an effort to render that person competent. Jackson v. Indiana, 406 

U.S. 715, 738, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972). And under certain 

circumstances, incompetent persons charged with serious crimes may be detained and 

involuntarily administered psychotropic drugs to restore their competency. Sell v. United 

States, 539 U.S. 166, 180-81, 123 S. Ct. 2174, 156 L. Ed. 2d 197 (2003). Those 

conditions, then, comport with an accused criminal's constitutional rights. By the same 

token, the accused cannot be confined indefinitely when the cause of his or her 

incompetence is not amenable to treatment or a course of treatment has failed to show 

material progress in restoring competence. In short, a criminal defendant incompetent to 

stand trial "cannot be held more than the reasonable period of time necessary to 

determine whether there is a substantial probability that he [or she] will attain that 

capacity in the foreseeable future." Jackson, 406 U.S. at 738. 
16

Those cases are significant here because they fix due process safeguards for 

persons accused of serious crimes. As we have noted, the criminally accused command

greater constitutional protections than the convicted, including probationers. So in the 

realm of assessing mental competence and ordering restorative treatment, we have no 

reason to infer convicted felons on probation would have a stronger constitutional shield 

against involuntary commitment than the accused in Jackson and Sell.[3]

[3]The defendant in Jackson had been charged with two counts of robbery. 406 

U.S. at 717. The defendant in Sell faced a slew of felony charges for mail fraud and 

Medicaid fraud the Court characterized as "serious, but nonviolent, crimes." 539 U.S. at 

169-70. Neither opinion suggests that its reasoning or holding would necessarily apply 

to persons charged with misdemeanors. Gonzalez had been convicted of a crime that 

generically could be considered both serious and a violent felony, although the specific 

factual circumstances tend to soften those characterizations. 

A district court could, therefore, presumably order the involuntary commitment of 

an incompetent probationer facing revocation for a reasonable time to receive treatment 

designed to render him or her competent. We suppose the time frames in K.S.A. 2018 

Supp. 22-3303—90 days for an appropriate mental health professional to assess and 

report to the district court whether the person "has a substantial probability of attaining 

competency" and, if so, for up to six months (including that 90-day period) to become 

competent—may serve as a benchmark of constitutional reasonableness.

A Reservation Noted

This case does not present and we do not consider in any fashion the due process 

implications of intermediate sanctions for a probation violation. Under K.S.A. 2018 

Supp. 22-3716(c)(1)(B), a district court may confine a probationer in jail for two or three 

days as punishment for a probation violation. And the district court may impose those 

short stays for up to a total of 18 days without revoking probation. Likewise, a district 
17

court may impose a sanction of up to 60 days in jail for a probation violation—a more 

severe punishment but something well short of revocation. K.S.A. 2018 Supp. 22-

3716(c)(11). 

We have reservations about how a probationer's due process right to be 

competent at a revocation hearing intersects with those lesser sanctions, particularly a 

two- or three-day jail stay. There is a certain incongruence in suggesting incompetent 

probationers can be or should be involuntarily committed for months of treatment to 

render them competent for a hearing to determine whether they should spend a few days 

(or even 60 days) in jail as punishment for violating a condition of their probation. We 

posed that incongruity to the lawyers during oral argument and did not have our 

concerns allayed. This constitutional conundrum, however, invites no immediately

obvious solution—that's what makes it a conundrum, after all—so we held no real

expectation that the jurisprudential fog might lift during oral argument.

We mention the intermediate statutory sanctions only to say that we have taken 

cognizance of them in outlining the positive due process protections we have identified 

for Gonzalez and other probationers in comparable circumstances and to point out that 

we do not mean for our outline to be applied to those sanctions. The due process 

required for the imposition of statutory sanctions short of revocation presents a distinct 

constitutional question calling for a distinct and fully developed constitutional answer. 

Remanded to the district court for further proceedings.