State ex rel. Stephan v. Clark

• Citation: 243 Kan. 561,759 P.2d 119
• Decision Date: 08 July 1988
• Docket Number: No. 61839,61839
• Parties: STATE of Kansas, ex rel. Robert T. STEPHAN, Attorney General for the State of Kansas; Roger V. Endell, Secretary of Corrections; and Steven J. Davies, Director of the Kansas State Penitentiary, Plaintiffs, v. The Honorable Paul W. CLARK, Judge of the District Court for the Eighteenth Judicial District; Clark V. Owens, II, District Attorney for the Eighteenth Judicial District; Tony W. Kennedy; Tony R. Roat, Virgil A. Faust, and Horace House, Defendants.
• Court: United States State Supreme Court of Kansas

Page 119

759 P.2d 119

243 Kan. 561

STATE of Kansas, ex rel. Robert T. STEPHAN, Attorney General

for the State of Kansas; Roger V. Endell, Secretary of

Corrections; and Steven J. Davies, Director of the Kansas

State Penitentiary, Plaintiffs, v. The Honorable Paul W. CLARK, Judge of the District Court for

the Eighteenth Judicial District; Clark V. Owens, II,

District Attorney for the Eighteenth Judicial District;

Tony W. Kennedy; Tony R. Roat, Virgil A. Faust, and Horace

House, Defendants.

No. 61839.

Supreme Court of Kansas.

July 8, 1988.

Syllabus by the Court

1. In sentencing a criminal defendant to the custody of the Secretary of Corrections pursuant to K.S.A. 1987 Supp. 21-4603(2)(a), the sentencing court may make recommendations but it cannot determine in which institution the defendant will be confined. That decision must be made by the Secretary of Corrections pursuant to statute.

2. A sentencing court may not impose an unconstitutional or illegal sentence upon a defendant or confine a defendant under unconstitutional conditions.

3. The existing conditions at state correctional institutions are relevant to the placement decisions of the Secretary of Corrections but it is inappropriate for a sentencing court to compel production of documents pertaining to such conditions for purposes of deciding whether to commit a defendant to the custody of the Secretary of Corrections.

4. K.S.A. 1987 Supp. 21-4601 sets forth broad objectives and legislative policy as guidelines to be considered by the court in imposing sentence.

5. K.S.A. 1987 Supp. 21-4601 contemplates that the sentencing court shall give consideration not only to the "individual characteristics, circumstances, needs and potentialities" of an individual defendant, but also to "the needs of public safety" and the protection of the general public.

6. In sentencing a defendant it is the court's duty to determine the appropriate disposition pursuant to K.S.A. 1987 Supp. 21-4603(2) and the length of sentence, within statutory bounds. It is the duty of the Secretary of Corrections to determine where and under what conditions such sentence, if any, will be served.

7. Information relating to conditions at any particular state correctional institution is irrelevant and immaterial to the determination of whether to sentence a defendant to the custody of the Secretary of Corrections or to modify an existing sentence.

8. K.S.A. 60-1501 et seq. provide specific procedures by which a defendant may attack the conditions of his imprisonment or the constitutionality or legality of the sentence imposed.

Timothy G. Madden, Sp. Asst. Atty. Gen., and Robert T. Stephan, Atty. Gen., and John W. Campbell, Deputy Atty. Gen., were with him on the briefs, for plaintiffs.

Stuart W. Gribble, of Stuart W. Gribble, P.A., Wichita, was on the brief, for defendant The Honorable Paul W. Clark.

Henry H. Blase, Chief Deputy Dist. Atty., was on the response, for defendant Clark V. Owens, II.

Kiehl Rathbun, Wichita, and C. Warner Eisenbise, Wichita, was with him on the brief, for defendants Tony W. Kennedy, Tony R. Roat, Virgil A. Faust, and Horace House.

HOLMES, Justice.

This is an original action in quo warranto and mandamus filed in the Supreme Court by the Attorney General, the Secretary of Corrections, and the Director of the Kansas State Penitentiary. The plaintiffs challenge the decision of the Sedgwick County District Court which denied motions to quash two subpoenas duces tecum. The subpoenas in question directed officials of the Department of Corrections to produce documents pertaining to prison conditions at Kansas State Penitentiary at Lansing (K.S.P.) and the Kansas State Industrial Reformatory (K.S.I.R.).

Plaintiffs are Robert T. Stephan, Attorney General; Roger V. Endell, current Secretary of Corrections; and Steven J. Davies, Director of K.S.P. In their petition they name as defendants the Honorable Paul W. Clark, Judge of the Criminal Department, Eighteenth Judicial District, Sedgwick County; and Clark V. Owens II, District Attorney for the Eighteenth Judicial District. Also named are four individuals who are criminal defendants involved in sentencing proceedings in Sedgwick County. Tony R. Roat and Tony W. Kennedy are presently incarcerated at K.S.P. and have filed motions for modification of their sentences. Their motions were consolidated for hearing before Judge Clark. Virgil A. Faust and his codefendant Horace House pled guilty to charges and are awaiting sentencing by Judge Clark.

The facts leading to the filing of this action are not in dispute. On July 16, 1987, a Department of Corrections official received a subpoena duces tecum from the Sedgwick District Court in the case of Tony R. Roat directing production of "any and all Federal guidelines, reports, and documents obtained by the Office of the Secretary of Corrections during 1987 relating to inmate conditions at Lansing Penitentiary." The official filed a motion to quash the subpoena, asserting inter alia that the material sought was irrelevant to the case pending against Tony R. Roat, that Roat lacked standing to raise issues concerning inmate treatment at the penitentiary, and that the issue was not ripe for adjudication.

Subsequently, in the case of Virgil A. Faust, then Secretary of Corrections Richard Mills received a subpoena duces tecum with the following directions:

"Please bring with you all reports from the Department of Justice regarding prison conditions at Lansing Penitentiary and KSIR, all correspondence between the Department of Justice and the Department of Corrections or other attorneys or the Kansas Legislature or subcommittees regarding the conditions at Lansing Penitentiary and KSIR, and all material, reports, memoranda or other information provided to the Department of Justice, Kansas Legislature or subcommittees regarding conditions at Lansing Penitentiary or KSIR."

The Secretary of Corrections filed a motion to quash that subpoena duces tecum on or about December 1, 1987.

In a hearing consolidating the cases, Judge Clark denied the motions to quash the subpoenas. The plaintiffs then filed this action on January 14, 1988, seeking an order of mandamus or quo warranto directing Judge Clark to quash the subpoenas duces tecum, or a peremptory order of mandamus pursuant to K.S.A. 60-802(b).

In response to plaintiffs' further request, this court on January 22, 1988, issued an order restraining defendants from enforcing the subpoenas and from securing any similar subpoenas pending further orders of this court. The order also stayed proceedings in Sedgwick District Court relative to the subject matter of the petition.

Defendant Clark V. Owens, II filed a response admitting all of the plaintiffs' allegations, adopting their arguments and legal authorities, and concurring in the relief sought by them. As defendant Owens has aligned himself with the position of the plaintiffs, he will be considered to be in the same category as the named plaintiffs. Defendants Kennedy, Roat, Faust, and House (hereinafter defendants Kennedy, et al.) filed a joint response and supporting memorandum on February 10, 1988. Judge Clark filed a separate response and supporting memorandum on the same date.

All parties urged this court to accept jurisdiction of the action and on March 7, 1988, this court issued an order doing so. See Mobil Oil Corporation v. McHenry, 200 Kan. 212, 239-241, 436 P.2d 982 (1968), and cases cited therein.

Although the original pleadings filed with this court assert four issues, the broad controlling issue is whether a sentencing court may compel the Department of Corrections to produce documents pertaining to prison conditions at particular correctional institutions to aid the court in deciding whether to sentence a criminal defendant to a term of incarceration pursuant to K.S.A. 1987 Supp. 21-4603(2)(a), or as an aid in deciding whether to modify a previous sentence pursuant to K.S.A. 1987 Supp. 21-4603(3). We conclude it may not and that the subpoenas in question should have been quashed.

K.S.A. 1987 Supp. 21-4603 provides in pertinent part:

"(2) Whenever any person has been found guilty of a crime, the court may adjudge any of the following:

(a) Commit the defendant to the custody of the secretary of corrections or, if confinement is for a term less than one year, to jail for the term provided by law;

(b) impose the fine applicable to the offense;

(c) release the defendant on probation subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution;

(d) suspend the imposition of the sentence subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution;

(e) assign the defendant to a community correctional services program subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution; or

(f) impose any appropriate combination of (a), (b), (c), (d) or (e).

....

"(3) Any time within 120 days after a sentence is imposed or within 120 days after probation or assignment to a community correctional services program has been revoked, the court may modify such sentence, revocation of probation or assignment by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits. 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."

The plaintiffs initially contend that a judge of the district court, in sentencing a felon to the custody of the Secretary of Corrections, may not determine the place of confinement. They assert that both statutory and case law are clear that only the Secretary of Corrections has the authority to confine a person to any particular correctional institution or...