STATE OF KANSAS v. JENNIFER L. DAILY

Topeka, Kansas criminal defense lawyer represented the Defendant with appealing the district court's revocation of the probation and imposition of her underlying sentence

On April 26, 2018, Jennifer Daily entered guilty pleas in two separate cases. In

Sedgwick County case No. 18-CR-651, Daily pled to one count of aggravated burglary

and one count of burglary. In case No. 17-CR-2582, she pled guilty to one count of

burglary and two counts of felony theft. At sentencing, the district court sentenced her to

64 months' imprisonment in case No. 18-CR-651 and 29 months in case No. 17-CR2582. Even so, it granted Daily's motion for dispositional departure—placing her on

probation for a term of 36 months in case No. 18-CR-651 and 24 months in case No. 17-

CR-2582.

Nine months later, the State filed its first warrant alleging that Daily violated the

conditions of her probation by consuming alcohol and methamphetamine as well as by

failing to obtain or maintain full-time employment. She admitted these allegations and

waived her right to an evidentiary hearing. As a result, the district court imposed a 48-

hour jail sanction and ordered her to successfully complete a community corrections

residential program.

Unfortunately, a second warrant was filed by the State seven months later in which

it was alleged that Daily again violated the conditions of her probation by testing positive

for methamphetamine two times. Again, Daily admitted to the allegations. The district

court imposed a 60-day jail sanction, ordered her to complete inpatient drug treatment,

ordered her to complete the residential program, and extended her probation term for 36

months from November 01, 2019, which was the date of the hearing.

Daily was also placed on probation on other cases that are not the subject of this

appeal. In case No. 16-TR-11841, her probation was terminated on May 12, 2020, and in

case No. 17-CR-2582, her probation was terminated on November 1, 2021. Still, her

probation in case No. 18-CR-651 remained in effect.

3

On May 27, 2022, the district court issued an order to appear for once again failing

to comply with the conditions of her probation. At the probation revocation hearing,

Daily waived her rights and admitted to all of the allegations. Accordingly, the district

court extended her probation an additional 12 months from June 9, 2022, which was the

date of the hearing.

About a year later, on June 7, 2023, the district court ordered Daily to appear for

another probation revocation hearing. This time, the State alleged that she violated the

conditions of her probation in a variety of ways including yet again testing positive for

methamphetamine. The next month, an additional warrant was filed alleging that Daily

submitted another urine sample which tested positive for methamphetamine, failed to

notify her probation officer about a change in employment, failed to attend drug and

alcohol treatment, and admitted to using methamphetamine on July 27, 2023.

Once more, Daily admitted to the allegations in both warrants. A probation

revocation hearing was held on August 3, 2023, at which the State requested that her

probation be revoked and that she be required to serve her underlying sentence due to her

multiple probation violations, her continued drug use, and her inability to be rehabilitated

while on probation. The State also asserted that because Daily had been placed on

probation by way of a dispositional departure, it was not necessary to impose

intermediate sanctions.

In response, Daily asserted that her inability to comply with the conditions of her

probation was due to several personal issues. She also pointed out that she had not

committed any new crimes and claimed that many of her violations were technical in

nature. Still, she agreed that several of her violations related to continued use of

methamphetamine. In addition, several of her supporters attended the hearing and spoke

on her behalf.

4

Daily asked the district court to either order an intermediate sanction or an

"extremely modified sentence." She maintained that she understood the severity of the

allegations and acknowledged that in dealing with her prior violations, the district court

had "been extremely generous with the outcomes." In reply, the State asserted that despite

the district court's efforts, Daily continually failed to comply with the conditions of her

probation. The State also reminded the district court again that Daily received probation

as a result of a dispositional departure and argued that revocation was appropriate.

At the conclusion of the hearing, the district court revoked Daily's probation and

ordered her to serve her underlying sentence. In doing so, the court explained:

"So this is not your first time being in the system. In fact, you had a 17-CR case that this

case was to run consecutive to here in Sedgwick County.

''You have had multiple opportunities before this Court on this case to do the

things and straighten yourself out that you're asking the Court at this point in time to do.

Pursuant to K.S.A. [2017 Supp.] 22-3716 subsection (c)(9) that was in effect at the time

of this probation—when you were placed on probation [for] the offense—the date of

offense, I'm going to revoke your probation and impose the original sentence. I will set

forth [with] particularity the reasons for finding that the welfare of the offender will not

be served by imposing a sanction—a soak sanction at this point in time.

''That being said, you have been given those opportunities while on probation,

multiple opportunities, but yet you still are offending and using. I told you at the last

hearing you were going to go to prison if you kept up with your conduct going forward.

So at this point [in] time, even your own statements that you don't know what to do and

you've done your best. But you have not done anything that the Court has asked you at

this point in time. That being said, pursuant to that subsection, I'm going to impose the

original sentence that was ordered previously. My hope is that when you get out you can

put this behind you, rejoin your group, and move forward."

5

In its journal entry, the district court found that Daily's probation was the result of

a dispositional departure, revoked her probation, and ordered her to serve her original

sentence. The district court also found that she was not entitled to any jail time credit.

Thereafter, Daily filed a timely notice of appeal.

ANALYSIS

On appeal, Daily presents two issues. First, whether the district court erred in

revoking her probation and ordering her to serve her original sentence. Second, whether

the district court erred in failing to grant her jail time credit in this case. In response, the

State contends that the district court was not required to impose intermediate sanctions

because Daily's probation was granted through a dispositional departure. The State also

contends that the district court did not abuse its discretion. Even so, the State concedes

that the issue of jail time credit should be remanded to the district court for determination.

District courts have the discretion to revoke an offender's probation and to order

the offender to serve the original sentence unless limited by statute. State v. Dooley, 308

Kan. 641, 647, 423 P.3d 469 (2018) (Dooley I). We review a district court's revocation of

probation and the imposition of an underlying sentence for abuse of discretion. State v.

Tafolla, 315 Kan. 324, 328, 508 P.3d 351 (2022). A district court abuses its discretion

only if its decision is (1) arbitrary, fanciful, or unreasonable; (2) based on a legal error; or

(3) based on factual error. The party asserting the error—in this case Daily—bears the

burden to establish an abuse of discretion. 315 Kan. at 328. To the extent that we are

required to interpret a statute, our review is unlimited. State v. Coleman, 311 Kan. 332,

334-35, 460 P.3d 828 (2020).

Additionally, a mixed question of law and fact requires us to review the district

court's factual findings for substantial competent evidence. State v. Dooley, 313 Kan.

815, 819, 491 P.3d 1250 (2021) (Dooley II). Substantial competent evidence is legal,

6

relevant, and material evidence that a reasonable person may accept as being sufficient to

support a conclusion. State v. Smith, 312 Kan. 876, 887, 482 P.3d 586 (2021); State v.

Doelz, 309 Kan. 133, 138, 432 P.3d 669 (2019). To determine whether substantive

competent evidence supports a district court's findings, we are to disregard any

conflicting evidence or inferences that may be drawn from such evidence. Dooley II, 313

Kan. at 819.

Daily argues that the district court erred by failing to comply with K.S.A. 2017

Supp. 22-3716(c) in revoking her probation. On the other hand, the State argues that the

district court was not required to make specific findings and had the discretion to revoke

Daily's probation without imposing intermediate sanctions. The State also asserts that

intermediate sanctions were unnecessary since Daily's probation was based on a

dispositional departure.

Under K.S.A. 2017 Supp. 22-3716(c)(1)(A)-(E), a sentencing court may impose

graduated intermediate sanctions on an offender for an established probation violation.

Where—as in this case—the district court granted probation because of a dispositional

departure, the imposition of intermediate sanctions is not required. K.S.A. 2017 Supp. 22-

3716(c)(9)(B). Likewise, the Kansas Supreme Court has found that "the dispositional

departure statutory exception does not require particularized findings." Tafolla, 315 Kan.

at 331. Accordingly, we find that under the circumstances presented, the district court

was not required to order intermediate sanctions, nor was it required to make

particularized findings.

Turning to the question of whether the district court abused its discretion in

revoking Daily's probation and ordering her to serve her original sentence, we note that

"[a]t some point, a court must determine whether a person is amenable to treatment and

probation." State v. Dunham, 58 Kan. App. 2d 519, 530, 472 P.3d 604 (2020). Moreover,

unless immediate sanctions are required, a district court has the discretion to revoke an

7

offender's probation no matter how many violations have been committed. 58 Kan. App.

2d at 530.

Here, Daily suggests that the district court erred by predetermining the outcome

before the probation revocation hearing. The district court supposedly did so by relying

on her conduct after the probationary period had expired to find that she had violated the

terms of her probation and by failing to make particularized findings. Before discussing

the evidence in the record on appeal, we note that the district court was not required to

make particularized rulings. See Tafolla, 315 Kan. at 331; K.S.A. 2017 Supp. 22-

3716(c)(9)(B).



Turning to the record, we find that it contains substantial evidence to support the

district court's findings and conclusions. As discussed above, Daily admitted to all the

allegations made against her by the State. So, it is undisputed that she tested positive for

methamphetamine on June 23, 2023, failed to notify her probation officer about a change

in her employment, and failed to complete substance abuse treatment. We find these facts

to be sufficient to support the reasonableness of the district court's decision to revoke

Daily's probation.



In addition, on July 27, 2023—which was after Daily's probation expired in two of

her cases—she once again admitted to using methamphetamine. Even if we do not

consider this admission, we still find that there is substantial competent evidence in the

record to support the district court's decision. We also note that at the time her probation

was revoked, Daily was still on probation in case No. 18-CR-651.

As the district explained to Daily, "[Y]ou have been given . . . multiple

opportunities, but yet you still are offending and using. I told you at the last hearing you

were going to go to prison if you kept up with your conduct going forward." Although we

do not question Daily's desire to improve her life, our role is not to replace our judgment

for that of the district court. Substantial competent evidence within the record establishes

that Daily failed—on numerous occasions—to comply with the conditions of her

probation. We therefore find that the district court acted within its sound discretion in

revoking her probation and in ordering her to serve her original sentence. Furthermore,

we find that the district court did not make a mistake of fact or error of law.

In light of the S