State v. Dansby

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NOT DESIGNATED FOR PUBLICATION

No. 118,033


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CLINTON J. DANSBY,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; ERIC A. COMMER judge. Opinion filed October 12, 2018.
Reversed and remanded with directions.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before ATCHESON, P.J., HILL, J., and STUTZMAN, S.J.

PER CURIAM: Defendant Clinton J. Dansby contends the Sedgwick County
District Court erroneously denied him a statutorily mandated nonprison punishment
entailing intensive drug treatment. The district court received—but did not resolve—
disputed evidence about Dansby's eligibility for such a program and otherwise made
insufficient findings justifying its decision to send him to prison. We, therefore, reverse
and remand to the district court for further proceedings.

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The State charged Dansby in September 2015 with possession of
methamphetamine and several other crimes. After Dansby was returned to Sedgwick
County from a Colorado prison where he was serving a sentence, he and his lawyer
worked out an arrangement with the State to resolve the charges. Dansby agreed to plead
guilty to possession of methamphetamine, felony theft, and fleeing or attempting to elude
a law enforcement officer. The State dismissed two other charges and agreed to
recommend drug treatment if Dansby qualified under K.S.A. 2017 Supp. 21-6824,
commonly known as SB 123 treatment. If Dansby were ineligible for SB 123 treatment,
the State would recommend imprisonment.

The district court accepted Dansby's pleas in March 2017 and found him guilty of
the three remaining charges. At a sentencing hearing three months later, the district court
denied motions Dansby filed for dispositional and durational departures from the
guidelines sentences. The district court also declined to impose a drug treatment
punishment consistent with K.S.A. 2017 Supp. 21-6824 because it saw no way to insure
Dansby would return to Kansas to undertake that treatment after completing his prison
sentence in Colorado. So the district court ordered Dansby to serve a controlling 30-
month prison sentence with a 12-month postrelease supervision term, reflecting a
standard guidelines sentence for the methamphetamine conviction. Dansby has appealed
the denial of his request for SB 123 drug treatment.

Defendants are generally eligible to be considered for SB 123 drug treatment
based on their crimes of conviction and their criminal histories. K.S.A. 2017 Supp. 21-
6824(a). A defendant meeting that initial eligibility standard is to undergo a "drug abuse
assessment" and a "criminal risk-need assessment." If those assessments show the
defendant to be at enhanced risk, he or she is subject to mandatory intensive drug
treatment as a nonprison punishment. K.S.A. 2017 Supp. 21-6824(c). But certain
defendants meeting those criteria remain ineligible for the statutory drug treatment
option. Among those excluded are: (1) out-of-state residents returning to their home
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states under either of two interstate compacts regulating the transfer and disposition of
convicted criminals; and (2) those defendants who do not meet the risk assessment levels
required in subsection (c). K.S.A. 2017 Supp. 21-6824(h)(1).

Given our resolution of the appeal, we are simply construing the statutory
requirements for SB 123 drug treatment in light of the record compiled in the district
court. Our review entails a question of law on which we owe no particular deference to
the district court. State v. Turner, 293 Kan. 1085, 1086, 272 P.3d 19 (2012).

The record shows Dansby satisfied the initial step for SB 123 drug treatment based
on the methamphetamine conviction and his criminal history. The record, however, does
not disclose whether he underwent the two assessments looking at his potential for
continued drug abuse and his criminal risk-need. At the sentencing hearing, Dansby
presented evidence, including his mother's testimony, suggesting he may be a Kansas
resident. The State controverted Dansby's evidence.

In rejecting Dansby's request for drug treatment, the district court cited none of the
disqualifying criteria in K.S.A. 2017 Supp. 21-6824. The statutory language does not
support the district court's reasoning that Dansby cannot participate in the drug treatment
because there is no guarantee he would return to Kansas after completing his Colorado
sentence. Having ruled on that basis, the district court never evaluated the statutory
disqualifications. All we can say is the district court erred in refusing to place Dansby in
a drug treatment program under K.S.A. 2017 Supp. 21-6824 for its stated reason. We
cannot, however, conclude Dansby is eligible without relevant fact-finding by the district
court. See State v. Neighbors, 299 Kan. 234, 240-41, 328 P.3d 1081 (2014) (remand for
additional findings if issue cannot otherwise be resolved on appeal); Fischer v. State, 296
Kan. 808, 825, 295 P.3d 560 (2013) (district court has "primary duty to provide adequate
findings and conclusions" and appellate court may remand for "additional findings and
conclusions").
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We, therefore, reverse the ruling denying Dansby SB 123 drug treatment and
remand so the district court may consider and resolve these points:

• Was Dansby a Kansas resident when the district court sentenced him? If not, was
he subject to an interstate compact governing convicted criminals? See K.S.A. 2017
Supp. 21-6824(h)(1)(A). Depending on how the district court answers those questions,
Dansby may be statutorily ineligible for SB 123 drug treatment.

• Did Dansby participate in the risk assessments outlined in K.S.A. 2017 Supp. 21-
6824(c)? If so, what were the results? If not, should he now be assessed? Those
assessments would be unnecessary if Dansby were an out-of-state resident subject to one
of the interstate compacts, thus disqualifying him under K.S.A. 2017 Supp. 21-
6824(h)(1)(A).

• Do any assessment results disqualify Dansby under K.S.A. 2017 Supp. 21-
6824(h)(1)(C)?

Based on those findings and conclusions, the district court should resentence
Dansby consistent with the criteria in K.S.A. 2017 Supp. 21-6824.

Reversed and remanded with directions.