State v. Arculeo, 72939
| Decision Date | 24 January 1997 |
| Docket Number | No. 72939,72939 |
| Citation | 261 Kan. 286,933 P.2d 122 |
| Parties | STATE of Kansas, Appellee, v. Scott M. ARCULEO, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Interpretation of a statute is a question of law. An appellate court's review of a question of law is unlimited.
2. "Conditional release" applies to an inmate who has served the inmate's maximum term or terms, less such work and good behavior credits as have been earned, and who shall, upon release, be subject to such written rules and conditions as the Kansas Parole Board may impose, until the expiration of the maximum term or terms for which the inmate was sentenced or until the inmate is otherwise discharged. K.S.A. 27-3718.
3. Expansion of the term conditional release as used in K.S.A. 21-4603d to include an offender who commits a new felony while released on bond pending sentence for a previous felony conviction is inconsistent with the statutory scheme of K.S.A. 21-4603d and contrary to the definition of conditional release in K.S.A. 22-3718.
4. A defendant who at the time of his or her sentencing for a new felony had been released on bond pending sentence in a prior felony case, is not on conditional release as that term is used in K.S.A. 21-4603d.
5. The statutory provision in K.S.A. 21-4603d authorizing a court to sentence an offender to imprisonment for a new conviction even when the new crime of conviction otherwise presumes a nonprison sentence, does not apply to an offender who commits a new felony while on bond pending sentence in a prior felony case.
Stephen J. Atherton, of Atherton & Atherton, Emporia, was on the brief, for appellant.
No appearance by appellee.
The defendant, Scott M. Arculeo, appeals from the trial court's prison sentence, claiming that the Kansas Sentencing Guidelines Act requires the imposition of a nonprison sanction. The Court of Appeals affirmed the trial court's decision that a prison sentence was the appropriate disposition because the defendant had committed his present crime while on conditional release under the provisions of K.S.A. 21-4603d(a). State v. Arculeo, 22 Kan.App.2d 91, 911 P.2d 818 (1996). We granted the defendant's petition for review.
The facts in this case are undisputed and are set forth in the Court of Appeals' opinion. On May 5, 1994, the defendant was charged in Lyon County with felony auto theft, K.S.A. 21-3701, a severity level 9 nonperson felony. Pursuant to a plea agreement, the defendant pled guilty to attempted felony theft, K.S.A. 21-3301 and K.S.A. 21-3701, a severity level 10 nonperson felony. The parties stipulated to a criminal history category of E, which calls for a prison sentence of 7 to 9 months with a presumptive 24-month nonprison sanction under the Kansas Sentencing Guidelines Act. See K.S.A. 21-4701 et seq.
At sentencing, the trial court noted the presumptive nonprison sanction but also noted that the defendant was under bond supervision awaiting sentencing for a second conviction in Lyon County. Moreover, the trial court noted that the defendant was under bond supervision awaiting sentencing for two convictions in Butler County and a third in Coffey County. Relying on K.S.A. 21-4603d, the trial court construed the defendant's multiple appearance bonds pending sentencing to be a conditional release. Exercising its discretion under K.S.A. 21-4603d(a), the court sentenced the defendant to a 9-month prison term. The trial court based its decision upon the following statutory language:
"When a new felony is committed while the offender is incarcerated and serving a sentence for a felony or while the offender is on probation, assignment to a community correctional services program, parole, conditional release, or post-release supervision for a felony, a new sentence shall be imposed pursuant to the consecutive sentencing requirements of K.S.A. 21-4608, and amendments thereto, and the court may sentence the offender to imprisonment for the new conviction, even when the new crime of conviction otherwise presumes a nonprison sentence. In this event, imposition of a prison sentence for the new crime does not constitute a departure. K.S.A. 21-4603d(a). (Emphasis added.)
Court of Appeals' Decision
The undisputed facts establish that at the time defendant was sentenced in this case for attempted felony theft, he was on bond pending sentencing for other prior felony offenses. The Court of Appeals affirmed the trial court and held that because of the context in which the phrase "conditional release" was used in Chapter 21 of the Kansas Statutes Annotated, the legislature intended "conditional release" to include any situation where a defendant is released by the court under restrictive conditions. 22 Kan.App.2d 91, Syl. p 7, 911 P.2d 818.
Conditional release is not defined in Chapter 21 of the Kansas Statutes Annotated but has been defined in Chapter 22, K.S.A. 22-3718:
"An inmate who has served the inmate's maximum term or terms, less such work and good behavior credits as have been earned, shall, upon release, be subject to such written rules and conditions as the Kansas parole board may impose, until the expiration of the maximum term or terms for which the inmate was sentenced or until the inmate is otherwise discharged."
The Court of Appeals reasoned that because conditional release is defined by the Kansas Legislature in Chapter 22, it may be presumed that the legislature intended that such a definition be used in Chapter 21 absent any contraindications. Thus, the court stated, in keeping with the doctrine of strict interpretation of penal statutes, conditional release would not include the time a defendant is on bond awaiting sentencing; because if the legislature had intended the meaning the trial court used, it could have included such a definition in the statute. 22 Kan.App.2d at 94, 911 P.2d 818.
However, the Court of Appeals found evidence that the legislature intended a broader meaning in Chapter 21 of the Kansas Statutes Annotated for the term conditional release than the definition in K.S.A. 22-3718. After examining K.S.A. 21-4619 and K.S.A. 21-4721, the Court of Appeals finally concluded the legislature meant "conditional release" to include any situation where a defendant is released by the court under restrictive conditions. 22 Kan.App.2d at 95, 911 P.2d 818.
The Court of Appeals first focused on K.S.A. 21-4619, regarding the expungement of certain convictions. It relied on subsection (g) as evidence of a legislative intent to expand the meaning of conditional release as used in K.S.A. 21-4603d(a). Subsection (g) provides:
"Whenever a person is convicted of a crime, pleads guilty and pays a fine for a crime, is placed on parole, post-release supervision or probation, is assigned to a community correctional services program, is granted a suspended sentence or is released on conditional release, the person shall be informed of the ability to expunge the conviction." (Emphasis added.)
The Court of Appeals concluded that "[t]his language suggests that 'conditional release' has a broader meaning because, in the context of this subsection of the statute, the individual has not been sentenced to prison and thus release from parole supervision is inapplicable." 22 Kan.App.2d at 94, 911 P.2d 818.
The problem with the above conclusion is that it fails to consider K.S.A. 21-4619 as a whole. K.S.A. 21-4619(a) provides that expungement of a conviction is only available if "three or more years have elapsed since the person (1) satisfied the sentence imposed; or (2) was discharged from probation, a community correctional services program, parole, post-release supervision, conditional release or a suspended sentence." (Emphasis added.)
K.S.A. 21-4619 provides no basis for expanding the definition of the term conditional release as used in K.S.A. 21-4603d(a) to include situations where a defendant is on bond awaiting trial or sentence. In fact, just the opposite is true. Expungement is available 3 years after the defendant satisfies his or her sentence or 3 years after he or she was discharged from probation, a community correctional services program, parole, post-release supervision, conditional release, or a suspended sentence. The definition of conditional release contained in K.S.A. 22-3718, which contemplates release from a term of confinement after sentence, is the only definition that fits under K.S.A. 21-4619.
The second statute relied on by the Court of Appeals to establish a legislative intent to expand the definition of conditional release is K.S.A. 21-4721, addressing departure sentences subject to appeal:
As the Court of Appeals suggests, this meaning of conditional release differs from the statutory definition of post-sentence supervision found in K.S.A. 22-3718. However, K.S.A. 21-4721 fails to provide a basis for inferring that the legislature intended that "conditional release" as used in K.S.A. 21-4603d(a) covers a person released on bond awaiting sentence.
As used in K.S.A. 21-4721, the term conditional release refers to post-sentence release. At the time the defendant was sentenced in this case, he was on bond awaiting sentencing for other felonies. He had not been released post-sentence. Further analysis below undermines the Court of Appeals' conclusion that conditional release as used in K.S.A. 21-4603d includes "any situation where a defendant is released by the court under restrictive conditions." 22 Kan.App.2d at 95, 911 P.2d 818.
This case presents a narrow issue of statutory interpretation. Interpretation of a...
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