State v. Adkins, 56462

• Decision Date: 26 October 1984
• Docket Number: No. 56462,56462
• Citation: 236 Kan. 259,689 P.2d 880
• Parties: STATE of Kansas, Appellee, v. Taber D. ADKINS, Appellant.
• Court: Kansas Supreme Court

Page 880

689 P.2d 880

236 Kan. 259

STATE of Kansas, Appellee, v.Taber D. ADKINS, Appellant.

No. 56462.

Supreme Court of Kansas.

Oct. 26, 1984.

Syllabus by the Court

1. K.S.A. 22-3430 is discussed and held (a) to be a conditional grant of authority to a trial judge to commit a criminal defendant to a state mental institution in lieu of imprisonment; and (b) the refusal of a trial court to commit a criminal defendant to a state mental institution in lieu of imprisonment is wholly a matter of trial court discretion and such refusal is not reviewable on appeal.

2.The sentencing criteria set forth in K.S.A. 21-4606 apply to the trial court's determination of the sentence to be imposed in a criminal case, and such sentence includes whether multiple terms of imprisonment are to be served consecutively or concurrently under authority of K.S.A.1983 Supp. 21-4608(1).

Ralph J. De Zago, Junction City, argued the cause and was on briefs, for appellant.

Lloyd R. Graham, Asst. County Atty., argued the cause, and Steven L. Opat, County Atty., and Robert T. Stephan, Atty. Gen., were on brief, for appellee.

McFARLAND, Justice:

Following pleas of nolo contendere, defendantTaber D. Adkins was found guilty of aggravated kidnapping (K.S.A. 21-3421); aggravated sodomy (K.S.A. 21-3506); and attempted first-degree murder (K.S.A. 21-3401, 21-3301).The crimes occurred on May 31, 1983, in Junction City.The victim was a six-year-old girl.In his direct appeal, defendant contends: (1)the trial court abused its discretion in refusing to commit him to a state mental institution for treatment pursuant to K.S.A. 22-3430 in lieu of imprisonment; and (2)K.S.A.1983 Supp. 21-4608(1) is unconstitutional as it grants unlimited power to a trial judge to impose consecutive sentences.

We shall first consider the claim of abuse of trial court discretion in refusing defendant's request to be committed to a state mental institution in lieu of sentencing.

K.S.A. 22-3430 provides:

"If the report of the examination authorized by the preceding section[K.S.A. 22-3429] shows that the defendant is in need of psychiatric care and treatment and that such treatment may materially aid in his rehabilitation and that the defendant and society is not likely to be endangered by permitting the defendant to receive such psychiatric care and treatment, in lieu of confinement or imprisonment, the trial judge shall have power to commit such defendant to any state or county institution provided for the reception, care, treatment and maintenance of mentally ill persons.The court may direct that the defendant be detained in such institution until further order of the court or until the defendant is discharged under K.S.A. 22-3431.No period of detention under this section shall exceed the maximum term provided by law for the crime of which the defendant has been convicted.The trial judge shall, at the time of such commitment, make an order imposing liability upon the defendant, or such person or persons responsible for the support of the defendant, or upon the county or the state, as may be proper in such case, for the cost of admission, care and discharge of such defendant.

"The defendant may appeal from any order of commitment made pursuant to this section in the same manner and with like effect as if sentence to a jail, or to the custody of the director of penal institutions had been imposed in this case."

Defendant filed a notice of intent to rely on the defense of insanity pursuant to K.S.A. 22-3219.In conjunction with the insanity defense, defendant was examined by three psychiatrists and one psychologist.In essence, each found defendant was legally sane at the time of the commission of the offenses and that his unlawful behavior was alcohol related as opposed to being the result of any major underlying mental illness.The experts included considerable material relative to defendant's background and current psychological condition in their respective reports.At the subsequent sentencing, the psychologist testified he felt defendant would benefit from long-term psychiatric treatment in the Larned State Security Hospital.The parties stipulated that the psychiatric and psychological reports prepared relative to the aborted attempt at an insanity defense should be used by the court in lieu of the psychiatric report of examination specified in K.S.A. 22-3429 in considering defendant's request for hospitalization in lieu of sentencing pursuant to K.S.A. 22-3430.

In the rather amorphous argument offered in support of defendant's contention that the trial court abused its discretion in this regard, the following themes predominate: (1) It is not fair to imprison a man for crimes he cannot remember committing, notwithstanding the fact consumption of alcohol is the sole cause of the memory loss; (2) the nature of the crimes is so heinous that, per se, psychiatric treatment should be imposed rather than imprisonment; (3)the trial court should have disregarded the stipulated-to psychiatric evidence and original psychological report and considered only the psychologist's testimony at the sentencing hearing; and (4)defendant's request to be committed was reasonable and its denial did not benefit anyone.

It should be emphasized K.S.A. 22-3430 grants authority to the trial judge to order commitment in lieu of imprisonment only where the required report shows:

"[T]he defendant is in need of psychiatric care and treatment and that such treatment may materially aid in his rehabilitation and that the defendant and society is not likely to be endangered by permitting the defendant to receive such psychiatric care and treatment ...."

The trial judge is not required to order commitment where the report is in compliance with the statute.The statute permits an appeal by a defendant committed thereunder but does not authorize an appeal from a refusal to order a commitment.The statute does not require a trial judge to make any findings in invoking or refusing to invoke the statute.K.S.A. 22-3430, then, is a conditional grant of authority to a trial judge.It grants no right of entitlement to a defendant to be committed as opposed to imprisoned.

As previously noted, the parties stipulated that the mass of psychiatric and psychological evidence before the court should be used by the court as a substitute for the single report by an institution contemplated by K.S.A. 22-3429.On appeal defendant claims the court erred in considering the all of such evidence as opposed to a portion thereof favorable to his position.This argument is wholly lacking in merit.

We conclude the refusal to commit under K.S.A. 22-3430 is wholly a matter of trial court discretion and is not reviewable on appeal.We note that the report of the Kansas Reception and Diagnostic Center prepared subsequent to the sentencing herein does not find any serious mental disorder.

For his second issue defendant contends K.S.A.1983 Supp. 21-4608(1) is unconstitutional as it grants unlimited power to a trial judge to impose consecutive sentences.

The sentences imposed were as follows: aggravated sodomy--ten years to life; aggravated kidnapping--life; attempted first-degree murder--ten years to life.The aggravated kidnapping and aggravated sodomy sentences were ordered to be served concurrently.The attempted murder sentence is to be served consecutively to the other two sentences.

K.S.A.1983 Supp. 21-4608(1) provides:

"When separate sentences of imprisonment for different crimes are imposed on a defendant on the same date, including sentences for crimes for which suspended sentences or probation have been revoked, such sentences shall run concurrently or consecutively as the court directs."

Specifically defendant contends:

"[T]his section[K.S.A.1983 Supp. 21-4608(1) ] is unconstitutional on its face as violative of the principle of substantive due process which is guaranteed the defendant and others similarly situated under the 5th and 14th Amendments to the United States Constitution and allied portions of the Kansas Constitution and Bill of Rights.Specifically, [defendant] claims that the power granted as to the judge to run sentences consecutively amounts to arbitrary power in the judge, since nowhere in the Kansas Code of Criminal Law regarding sentencing or anywhere else that defendant can find is the power given in K.S.A. 21-4608(1) checked in any way by any criteria or guidance as to when consecutive sentences should be given or as to what factors should be taken into account to determine whether sentences should be ordered concurrent or consecutive."

Defendant's position on this issue is predicated upon the proposition that the sentencing criteria set forth in K.S.A. 21-4606 are inapplicable to a trial court's consideration of whether the terms are to run concurrently or consecutively.

K.S.A. 21-4606 provides:

"(1) In sentencing a person to prison, the court, having regard to the nature and circumstances of the crime and the history, character and condition of the defendant, shall fix the lowest minimum term which, in the opinion of said court, is consistent with the public safety, the needs of the defendant, and the seriousness of the defendant's crime.

"(2) The following factors, while not controlling, shall be considered by the court in fixing the minimum term of imprisonment;

"(a)The defendant's history of prior criminal activity;

"(b) The extent of the harm caused by the defendant's criminal conduct;

"(c) Whether the defendant intended that his criminal conduct would cause or threaten serious harm;

"(d) The degree of the defendant's provocation;

"(e) Whether there were substantial grounds tending to excuse or justify the defendant's...