State v. Miller, 75630

• Decision Date: 25 October 1996
• Docket Number: No. 75630,75630
• Citation: 926 P.2d 652,260 Kan. 892
• Parties: STATE of Kansas, Appellant, v. Jacqueline M. MILLER and Kenneth D. Douglas, Appellees.
• Court: Kansas Supreme Court

Page 652

926 P.2d 652

260 Kan. 892

STATE of Kansas, Appellant, v. Jacqueline M. MILLER and Kenneth D. Douglas, Appellees.

No. 75630.

Supreme Court of Kansas.

Oct. 25, 1996.

Syllabus by the Court

1. Statutory interpretation is a question of law, and the appellate court's scope of review is unlimited.

2. After a lawful sentence has been imposed under the Kansas Sentencing Guidelines Act (K.S.A. 21-4701 et seq.) for a crime committed on or after July 1, 1993, committing a defendant to the custody of the Secretary of Corrections, the sentencing court lacks jurisdiction: (1) to modify the sentence except to correct "arithmetic or clerical errors" pursuant to K.S.A. 21-4721(i); (2) to consider or reconsider departure from the presumptive sentence; or (3) to modify the sentence by reinstating a previously revoked probation.

Doyle Baker, Assistant District Attorney, argued the cause, and Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, were with him on the briefs, for appellant.

Janine Cox, Assistant Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief, for appellee Jacqueline M. Miller.

John J. Briggs, Assistant Public Defender, argued the cause, and William A. Wells of Young, Bogle, McCausland, Wells & Clark, P.A., Wichita, was on the brief for appellee Kenneth D. Douglas.

McFARLAND, Chief Justice:

In these consolidated appeals, the State, on questions reserved, challenges the district court's jurisdiction to modify sentences lawfully imposed under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., committing defendants to the custody of the Secretary of Corrections.

The two cases involve different procedural facts and will be considered separately. We shall first consider the appeal relative to Kenneth D. Douglas.

KENNETH D. DOUGLAS

On July 14, 1995, Kenneth D. Douglas,whose crimes were committed on January 14, 1995, pled nolo contendere to two counts of aggravated indecent liberties, K.S.A. 21-3504(a)(3), a level 3 person felony. Having one prior misdemeanor, Douglas' criminal history fell into category I. The presumptive sentence under the KSGA for his primary conviction was 46 to 51 months' imprisonment. On August 9, 1995, Douglas filed a motion for durational and dispositional departure from the presumptive sentence. On September 1, 1995, Douglas appeared for sentencing. After argument on the matter, the district court found no substantial and compelling reasons to depart from the presumptive sentence and sentenced Douglas to two concurrent terms of 46 months' imprisonment.

On September 6, 1995, Douglas filed a motion for reconsideration. Douglas requested reconsideration of his sentence and offered the testimony of Dr. Howard Brodsky, Ph.D., who would assert that Douglas was not a pedophile.

On September 14, 1995, a hearing was held where the district court acknowledged that it had previously rejected Douglas' motion for departure and sentenced him to imprisonment. Judge William Rustin then related the circumstances leading to Douglas' motion to reconsider, stating that after Douglas' sentencing, Douglas' attorney had appeared in the judge's office asking if there was "anything that [he] could have done or should have done to assist Mr. Douglas." Judge Rustin told defense counsel that he "made a fine ... thorough presentation," and if he wanted to "come back the following week and talk to [him], he could." Judge Rustin went on:

"I've thought about this over the holiday weekend, and I thought maybe under the circumstances I needed to review some things that I possibly had not reviewed totally, by--at the time of sentencing. I know Mr. Douglas told me that he'd had quite a problem with alcohol during the course of his life and had been dry for a certain period of time. Of course, we hear alcohol dependent problems up here quite a bit, just like drug dependent problems up here, and most of the time I'll hear a person say 'I've conquered that problem, I'll be able to conquer it,' and I think this is because they want to avoid any incarceration if they can, and a lot of them do that. But, I got into more of a question in my mind, and I went back over Dr. Brodsky's reports. I think the largest question I had in my mind cropped up was the wide range of people that Mr. Douglas had confronted and had some problems with. Not only the children, but, I think, the fellow 24 years of age. I asked Bill if he wanted to pursue this, get ahold of the District Attorney's Office and file a motion, and then get me something from Dr. Brodsky concerning whether or not his client, Mr. Douglas, would be classified as a pedophile."

At the hearing, the State argued that, under the KSGA, the district court had no jurisdiction to change the sentence once it was imposed unless it had imposed an illegal sentence. The State also objected to any new post-sentencing information being considered by the court. Douglas argued that the district court retained jurisdiction until the defendant is actually "submitted to the custody of the Secretary of Corrections." Because that had not happened in this case, Douglas argued that the district court retained jurisdiction to reconsider the sentence imposed. The district court then granted defendant's motion for reconsideration and placed defendant on 5 years' probation. The journal entry states that the court found "that a flexible reading of the Kansas Sentencing Guidelines Act would allow for reconsideration and allow the Court to reconsider and change its prior judgment." The journal entry lists findings the court believed constituted the substantial and compelling reasons justifying the dispositional departure.

The district court found that it had jurisdiction to modify a lawful KSGA sentence of imprisonment. The propriety of that determination is the issue before us.

The State argues that KSGA has eliminated the whole sentence modification process available under the pre-KSGA sentencing scheme. Therefore, the State argues the district court was without jurisdiction to modify its lawful September 1, 1995, sentencing. Douglas does not contend that KSGA authorizes motions to modify. Rather, defendant argues: (1) under the "unique circumstances" herein, the change in the sentence was not really a modification; (2) the district court has jurisdiction to reconsider departure issues so long as the defendant has not been physically delivered to the custody of the Secretary of Corrections; and (3) the court may reconsider its decision on departure issues so long as the journal entry of the hearing has not been filed prior to the filing of the motion for reconsideration.

This issue concerns the interpretation of the KSGA. Statutory interpretation is a question of law, and the appellate court's scope of review is unlimited. State v. Riley, 259 Kan. 774, Syl. p 1, 915 P.2d 774 (1996); State v. Roderick, 259 Kan. 107, 110, 911 P.2d 159 (1996).

"When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be." Martindale v. Tenny, 250 Kan. 621, Syl. p 2, 829 P.2d 561 (1992). See State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994).

However, if the statute is ambiguous, the fundamental rule of statutory construction, to which all other rules are subordinate, is that the intent of the legislature governs if that intent can be ascertained. Gonzales, 255 Kan. at 248-49, 874 P.2d 612. " 'In determining legislative intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished and the effect the statute may have under the various constructions suggested.' " Gonzales, 255 Kan. at 249, 874 P.2d 612.

" 'Our criminal statutes are to be construed strictly against the State.' " State v. JC Sports Bar, Inc., 253 Kan. 815, 818, 861 P.2d 1334 (1993).

The statutory pre-KSGA sentence modification process has been continued as to dispositions for crimes committed prior to July 1, 1993, in K.S.A. 21-4603, which provides:

"(d)(1) Except when an appeal is taken and determined adversely to the defendant as provided in subsection (d)(2), at any time within 120 days after a sentence is imposed, after probation or assignment to a community correctional services program has been revoked, the court may modify such sentence, revocation of probation or assignment to a community correctional services program by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits and shall modify such sentence if recommended by the Topeka correctional facility unless 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 inmate will not be served by such modification.

"(2) If an appeal is taken and determined adversely to the defendant, such sentence may be modified within 120 days after the receipt by the clerk of the district court of the mandate from the supreme court or court of appeals.

"(e) The court shall modify the sentence at any time before the expiration thereof when such modification is recommended by the secretary of corrections unless 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 inmate will not be served by such modification. The court shall have the power to impose a less severe penalty upon the inmate, including the power to reduce the minimum below the statutory limit on the minimum term prescribed for the crime of which the inmate has been convicted. The recommendation of the secretary of corrections, the hearing on the recommendation and the order of modification shall be made...