Mueller v. State
| Decision Date | 06 April 2001 |
| Docket Number | No. 83,727.,83,727. |
| Citation | 28 Kan. App.2d 760,24 P.3d 149 |
| Parties | STEVEN R. MUELLER, Appellant, v. STATE OF KANSAS, Appellee. |
| Court | Kansas Court of Appeals |
Brent Getty, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, for the appellant.
Steven R. Mueller, appellant pro se.
No appearance for the appellee.
Before RULON, C.J., PIERRON, J., and ROGG, S.J.
Steven R. Mueller appeals the denial of his motion filed pursuant to K.S.A. 60-1507.
Mueller was convicted of aggravated robbery, a class B felony, occurring on January 28, 1985. He was sentenced to a prison term of 10 to 20 years which was to run consecutive to a sentence from Shawnee County. The sentence was later modified to show the sentence was to run consecutive to a sentence from Douglas County. Muller was granted parole on June 15, 1992.
Effective July 1, 1993, the legislature enacted the Kansas Sentencing Guidelines Act (KSGA). See L. 1992, ch. 239. As a part of the KSGA, K.S.A. 1993 Supp. 22-3717(f) provided:
"If an inmate is sentenced to prison for a crime committed after July 1, 1993, while on parole or conditional release for a crime committed prior to July 1, 1993, the old sentence shall be converted into a determinate sentence and will run consecutive to the new sentence as follows...."
This subsection was in effect from July 1, 1993, until it was amended on March 24, 1994. See L. 1992, ch. 239, § 270; L. 1994, ch. 21, § 1. Mueller violated his parole conditions in February 1994 by failing to submit to a timely drug screen and was returned to prison.
After the amendment in 1994, the relevant part provided:
K.S.A. 1994 Supp. 22-3717(f).
This 1994 amendment placed the same limitations for retroactive sentence conversion upon parolees who committed a new offense as those placed upon parolees who committed a technical parole violation under K.S.A. 1993 Supp. 21-4724(b)(2). Subsection (b)(2) provided that offenders on "parole for crimes classified in subsection (b)(1) committed prior to July 1, 1993, who have such ... parole revoked shall have their sentences modified according to the provisions specified in the [KSGA]." K.S.A. 1993 Supp. 21-4724(b)(1) limited retroactive sentence conversion to offenses classified in the presumptive probation grid block or border box blocks on the nondrug grid. Mueller was not eligible to have his sentence converted under that statute because aggravated robbery was a severity level 3 offense, see K.S.A. 21-3427, and a severity level 3 offense is classified as presumptive prison. See K.S.A. 21-4704(a).
In April 1994, Mueller was paroled again. In July 1995, Mueller missed an appointment with his parole officer, causing his parole to be revoked. He was not convicted of or sentenced for any new offense.
In 1999, Mueller filed a pro se motion to correct an illegal sentence. He argued the KSGA's limited retroactive provisions for sentence conversion, K.S.A. 1993 Supp. 21-4724(b) and K.S.A. 1993 Supp. 22-3717(f), violated his due process rights because parolees could only have their pre-KSGA sentence converted if they committed a new felony while on parole and were sentenced to prison for the new felony. Mueller argued the conversion statutes placed an unconstitutional condition upon parolees by requiring relinquishment of their parole status, which is a protected liberty interest. This, he claimed, violated the "doctrine of unconstitutional conditions."
Mueller also claimed the statutes violated his equal protection rights under the 14th Amendment. He believed the statutes created an arbitrary distinction between parolees who committed a technical violation and parolees who committed a new felony. Thus, similarly situated parolees were not being treated equally.
Mueller stated the denial of sentence conversion had resulted in the infliction of severe emotional distress. By continuing to be held under his pre-KSGA sentence, he claims his sentence had evolved into cruel and unusual punishment, thereby violating § 9 of the Kansas Constitution Bill of Rights.
The district court found the sentence imposed was legal and applicable to the law in effect when the offense occurred as set forth in K.S.A. 21-4501. Also, Mueller had filed a previous 60-1507 motion raising substantially the same issues. Those findings and conclusions of the discussion on that motion were adopted.
After an analysis of jurisidictional issues, we have decided to address the substantive issues raised by Mueller.
Mueller raises equal protection arguments under K.S.A. 1993 Supp. 21-4724(b)(2). Chiles v. State, 254 Kan. 888, 869 P.2d 707 (1994), controls this issue. Chiles involved offenders who were incarcerated when the KSGA became effective. Those offenders challenged the limited retroactive provision of K.S.A. 1993 Supp. 21-4724(b)(1), which makes eligibility for sentence conversion dependent upon the classification of the offense, i.e., less serious offenders. The Chiles court held the limited retroactive provision of subsection (b)(1) did not violate the Equal Protection or Due Process Clauses of the United States Constitution or the Kansas Constitution. 254 Kan. at 901, 903.
Under K.S.A. 1993 Supp. 21-4724(b)(2), which Mueller challenges, parolees who had their parole revoked can have their pre-KSGA sentence converted only if they are eligible under subsection (b)(1). Because conversion eligibility under subsection (b)(2) is dependent upon the conditions of (b)(1), Mueller's challenge is actually upon the conditions in subsection (b)(1). Thus, he is asking this court to reverse Chiles, which we cannot do. The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. Gadberry v. R.L. Polk & Co., 25 Kan. App.2d 800, 808, 975 P.2d 807 (1998). There is no indication the Supreme Court is departing from its previous positions. Further, Mueller's argument for reversing Chiles is flawed.
Mueller argues he should be considered a less serious offender because he was granted parole. He relies upon language in Payton v. State, 22 Kan. App.2d 843, 846-47, 923 P.2d 1059 (1996) . While the parole board may have found that Mueller was able and willing to fulfill the obligations of a law-abiding citizen by granting him parole, the legislature chose the classification of the offense for determining whether a person was a less serious offender and eligible for sentence conversion. Under Chiles, the limited retroactive sentence conversion provision of K.S.A. 1993 Supp. 21-4724(b)(2) is not violative of the Equal Protection and Due Process Clauses of the Constitutions of the United States or Kansas.
Mueller's motion also raises an equal protection argument regarding K.S.A. 1993 Supp. 22-3717(f). This argument has been considered and rejected by our appellate courts. See State v. Perez, 269 Kan. 340, 11 P.3d 52 (2000) (). Again, this court is duty bound to follow Kansas Supreme Court precedent. Gadberry, 25 Kan. App.2d at 808. There is no indication the Supreme Court is departing from its previous positions.
Mueller also makes a due process challenge to K.S.A. 1993 Supp. 22-3717(f). Neither the Perez nor the Adams courts addressed a due process challenge to K.S.A. 1993 Supp. 22-3717(f). His new claim is considered. See State v. Bissell, 24 Kan. 169, 170, 943 P.2d 76 (1997).
"The constitutionality of a statute is a question of law; therefore, we have unlimited review." A statute is presumed constitutional, and the party attacking the statute has the burden of proof. "If there is any reasonable way to construe a statute as constitutionally valid, we must do so. [Citation omitted.]" Perez, 269 Kan. at 342.
Due process emphasizes fairness between the state and the individual dealing with the state. The due process test is whether the regulation is reasonable in relation to its subject and is adopted in the interest of the community. When a court has addressed whether a statute violates equal protection, it will have implicitly determined whether the statute violates due process. The due process and equal protection tests weighs almost identical factors in determining the constitutionality of a statute. Chiles, 254 Kan. at 902.
As noted in Perez, the legislature enacted K.S.A. 1993 Supp. 22-3717(f) to bridge the gap between two different statutory sentencing schemes for parolees who would be subjected to both. The statute has a reasonable relation to that objective. A parolee who is returning to prison after having been convicted and sentenced on a new felony will face an additional sentence which is most likely to be served consecutive to the pre-KSGA sentence....
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