State v. Cash

• Decision Date: 14 October 2011
• Docket Number: No. 104,180.,104,180.
• Citation: 293 Kan. 326,263 P.3d 786
• Parties: STATE of Kansas, Appellee,v.Joshua CASH, Appellant.
• Court: Kansas Supreme Court

293 Kan. 326

263 P.3d 786

STATE of Kansas, Appellee,

v.Joshua CASH, Appellant.

No. 104,180.

Supreme Court of Kansas.

Oct. 14, 2011.

Syllabus by the Court

1. Notwithstanding the overlap in the parole eligibility rules contained in K.S.A. 2008 Supp. 22–3717(b)(2) and (b)(5), an inmate sentenced to an off-grid, indeterminate hard–25 life sentence pursuant to K.S.A. 21–4643 shall not be eligible for parole until that inmate has served the mandatory 25 years in prison.

2. An inmate who has received an off-grid indeterminate life sentence can leave prison only if the successor to the Kansas Parole Board grants the inmate parole. Therefore, a sentencing court has no authority to order a term of postrelease supervision in conjunction with an off-grid indeterminate life sentence.

Heather Cessna, of Kansas Appellate Defender Office, was on the brief for appellant.Robbin L. Wasson, assistant district attorney, Jerome Gorman, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by JOHNSON, J.:

Joshua Cash appeals the sentences he received after pleading guilty to sex crimes covered by Jessica's Law, K.S.A. 21–4643. He contends that the controlling term of imprisonment should have provided for parole eligibility after 20 years and that the district court should not have ordered lifetime postrelease supervision for his off-grid convictions. We affirm the hard–25 life sentence but vacate that portion of the sentence imposing lifetime postrelease supervision.

Factual and Procedural Overview

Cash confessed to having sexual contact with his 8–year–old stepdaughter and eventually pled guilty to three counts of aggravated indecent liberties with a child under the age of 14 years, in violation of K.S.A. 21–3504(a)(3). Pursuant to K.S.A. 21–4643(a)(1)(C), the court imposed three concurrent life sentences, with a mandatory minimum term of imprisonment of not less than 25 years. Also, without any objection from the defense, the court included lifetime postrelease supervision in Cash's sentence. Cash timely appealed, and the matter comes directly to this court. See K.S.A. 22–3601(b)(1).

Parole Eligibility

Cash first points out that his parole eligibility fits within the statutory language of two provisions: K.S.A. 2008 Supp. 22–3717(b)(2) and K.S.A. 2008 Supp. 22–3717(b)(5). Cash then argues that the rule of lenity dictates that he be sentenced to the shorter mandatory minimum.

Standard of Review

Whether a sentence is illegal is an issue of statutory interpretation and subject to unlimited review as a question of law. State v. Chavez, 292 Kan. 464, 254 P.3d 539 (2011).

Analysis

Cash acknowledges that he is raising this issue for the first time on appeal. See State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008) (issues not raised before trial court cannot be raised on appeal). However, Cash reminds us that appellate courts occasionally entertain new legal theories that have been asserted for the first time on appeal. See State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010) (enumerating exceptions to general rule of issue preservation). The State does not favor us with any argument on whether the parole eligibility issue is preserved for appellate review, so we will proceed to consider the merits.

Parole eligibility is governed by K.S.A. 2008 Supp. 22–3717, which provides in relevant part:

“(b)(1) Except as provided by K.S.A. 21–4635 through 21–4638, and amendments thereto, an inmate sentenced to imprisonment for the crime of capital murder, or an inmate sentenced for the crime of murder in the first degree based upon a finding of premeditated murder, committed on or after July 1, 1994, shall be eligible for parole after serving 25 years of confinement, without deduction of any good time credits.

(2) Except as provided by subsection (b)(1) or (b)(4), K.S.A. 1993 Supp. 21–4628 prior to its repeal and K.S.A. 21–4635 through 21–4638, and amendments thereto, an inmate sentenced to imprisonment for an off-grid offense committed on or after July 1, 1993, but prior to July 1, 1999, shall be eligible for parole after serving 15 years of confinement, without deduction of any good time credits and an inmate sentenced to imprisonment for an off-grid offense committed on or after July 1, 1999, shall be eligible for parole after serving 20 years of confinement without deduction of any good time credits.

(3) Except as provided by K.S.A. 1993 Supp. 21–4628 prior to its repeal, an inmate sentenced for a class A felony committed before July 1, 1993, including an inmate sentenced pursuant to K.S.A. 21–4618, and amendments thereto, shall be eligible for parole after serving 15 years of confinement, without deduction of any good time credits.

(4) An inmate sentenced to imprisonment for a violation of subsection (a) of K.S.A. 21–3402, and amendments thereto, committed on or after July 1, 1996, but prior to July 1, 1999, shall be eligible for parole after serving 10 years of confinement without deduction of any good time credits.

(5) An inmate sentenced to imprisonment pursuant to K.S.A. 21–4643, and amendments thereto, committed on or after July 1, 2006, shall be eligible for parole after serving the mandatory term of imprisonment without deduction of any good time credits.” (Emphasis added.)

Cash was sentenced to a mandatory minimum 25–year prison term pursuant to K.S.A. 21–4643 for crimes committed in 2009. Under K.S.A. 2008 Supp. 22–3717(b)(5), Cash is parole eligible after serving the mandatory term of imprisonment, i.e., 25 years. However, Cash also fits the description of an inmate eligible for parole after serving 20 years contained in K.S.A. 2008 Supp. 22–3717(b)(2), because he was sentenced to imprisonment for an off-grid offense committed on or after July 1, 1999, and he does not fit within the listed exceptions, e.g., subsections (b)(1) or (b)(4). “In other words, the parole eligibility rules of subsections (b)(2) and (b)(5) overlap.” Chavez, 292 Kan. at 468, 254 P.3d 539.

Cash urges us to apply the rule of lenity as we did recently in State v. Horn, 288 Kan. 690, 206 P.3d 526 (2009). In Horn, we noted that the “general application of the rule is that ‘ “[c]riminal statutes must be strictly construed in favor of the accused. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute.” ’ ” 288 Kan. at 693, 206 P.3d 526 (quoting State v. Rupnick, 280 Kan. 720, 735, 125 P.3d 541 [2005] ).

More recently, Chavez addressed the exact issue that Cash presents here. We noted that the new parole eligibility provision of subsection (b)(5) was contained in the same house bill, 2006 Supp. H.B. 2576, that established the 25–year mandatory minimum prison term in K.S.A. 21–4643. Moreover, the section of the bill establishing the new parole eligibility provision specifically referred to the bill section that established the 25–year mandatory prison term. See L.2006, ch. 212, secs. 2, 19. Accordingly, we held that the general rule of strict construction of criminal statutes must give way to the constraint that statutory interpretation “must be reasonable and sensible to effect legislative design and intent,” and that “the rule of lenity is subject to the existence of ‘any reasonable doubt’ as to the statute's meaning.” Chavez, 292 Kan. at 468, 254 P.3d 539. Thus, we held:

“Given the specific language of subsection (b)(5) as compared to the more general language of subsection (b)(2), together with the concurrent adoption of the mandatory minimum sentences in K.S.A. 21–4643 and the parole eligibility provision in K.S.A. 22–3717(b)(5), there can be no reasonable doubt that the legislature intended for a person convicted of aggravated indecent liberties with a child to be parole eligible only after serving the mandatory minimum sentence specified in K.S.A. 21–4643.” Chavez, 292 Kan. at 468, 254 P.3d 539.

Cash has not presented any argument that would persuade us to retreat from the holding in Chavez. We are particularly unmoved by the argument that the two subsections can be read in harmony and, therefore, the rule that a specific statute prevails over a more general statute is inapplicable. The argument is based upon the rather curious assertion that “the fact that an inmate is eligible for parole after 25 years does...