State v. Chavez, 103,168.

• Decision Date: 15 July 2011
• Docket Number: No. 103,168.,103,168.
• Citation: 254 P.3d 539,292 Kan. 464
• Parties: STATE of Kansas, Appellee,v.Randy CHAVEZ, Appellant.
• Court: Kansas Supreme Court

292 Kan. 464

254 P.3d 539

STATE of Kansas, Appellee,

v.Randy CHAVEZ, Appellant.

No. 103,168.

Supreme Court of Kansas.

July 15, 2011.

Syllabus by the Court

1. When the provisions of two statutes are in conflict, the more specific statute governs.

2. A defendant who is sentenced under Jessica's Law, K.S.A. 21–4643, is subject to a mandatory minimum term of imprisonment of not less than 25 years before becoming eligible for parole.

3. Imposition of parole conditions, including lifetime monitoring, is the province of

the parole board and lies outside the jurisdiction of the district court.

Rachel L. Pickering, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.Lesley A. Isherwood, assistant district attorney, argued the cause, and Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were on the brief for appellee.

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

Randy Chavez appeals from the sentence imposed following his guilty plea to one off-grid count of aggravated indecent liberties with a child, under Jessica's Law, and one on-grid count of aggravated indecent liberties with a child.

The crimes for which Chavez was sentenced took place between February 2005 and April 2008. His counsel moved for a departure sentence to a guidelines sentence. The district court denied the motion and sentenced him to a 25–year term with lifetime parole and lifetime electronic monitoring for the off-grid conviction and a concurrent aggravated term of 100 months for the on-grid conviction. He took a timely appeal to this court under K.S.A. 22–3601(b)(1).

Chavez initially contends that the district court erred in sentencing him to a 25–year term under K.S.A. 21–4643(a)(1) instead of a 20–year term under K.S.A. 22–3717(b)(2). Whether the sentence was illegal is a matter of statutory interpretation, which is a question of law subject to unlimited appellate review. State v. Ballard, 289 Kan. 1000, 1010, 218 P.3d 432 (2009).

As a preliminary matter, the State contends that this court does not have jurisdiction to address this issue because Chavez did not object to the sentence at the time that it was pronounced. Although he did not make a contemporaneous objection, that failure does not preclude appellate resolution of this question.

Life sentences for off-grid crimes are not “presumptive sentences” within the meaning of the sentencing guidelines and therefore are not subject to the jurisdictional bar of K.S.A. 21–4721(c)(1). See State v. Ortega–Cadelan, 287 Kan. 157, 163–64, 194 P.3d 1195 (2008). Although Chavez did not challenge the legality of his sentence before the district court, K.S.A. 22–3504(1) permits this court to correct an illegal sentence at any time. See, e.g., State v. Reyna, 290 Kan. 666, 695, 234 P.3d 761 (2010). Because this issue invokes a strictly legal question regarding the jurisdiction of the district court to impose the sentence that it pronounced from the bench, the issue lies within the scope of appellate review, the appellant's failure to object at sentencing notwithstanding.

K.S.A. 22–3717(b)(2) reads:

“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.” (Emphasis added.)

Subsections (b)(1) and (b)(4) of K.S.A. 22–3717 govern certain murder convictions. Because he was not convicted of murder, Chavez concludes that he must be eligible for parole after serving 20 years of confinement.

Two other statutory provisions, however, when read together, imply incarceration for a minimum of 25 years.

K.S.A. 21–4643(a)(1) reads:

“Except as provided in subsection (b) or (d), a defendant who is 18 years of age or older and is convicted of the following crimes committed on or after July 1, 2006, shall be sentenced to a term of imprisonment for life with a mandatory minimum term of imprisonment of not less than 25 years unless the court determines that the defendant should be sentenced as determined in paragraph (2):

....

“(C) aggravated indecent liberties with a child, as defined in subsection (a)(3) of K.S.A. 21–3504, and amendments thereto.” (Emphasis added.)

Chavez does not fit the exceptions of subsections (b) or (d), which refer to mandatory 40–year sentences and departures based on factors that the district court rejected in this case.

K.S.A. 22–3717(b)(5) reads:

“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.)

Reading K.S.A. 21–4643(a)(1) together with K.S.A. 22–3717(b)(5) leads to the conclusion that Chavez is subject to a minimum sentence of 25 years before he becomes eligible for parole.

When the provisions of two statutes are in conflict, the more specific statute governs. See, e.g., Robinson v. City of Wichita Employees' Retirement Bd. of Trustees, 291 Kan. 266, 282, 241 P.3d 15 (2010). K.S.A. 21–4643(a)(1) is the more specific statute because it makes explicit reference to aggravated indecent liberties with a child. Furthermore, a finding that K.S.A. 22–3717(b)(2) controls would turn K.S.A. 21–4643(a)(1)(C), which explicitly and specifically requires a 25–year minimum term for the very crime at issue here, into meaningless excess words in the criminal statute. The courts presume that the legislature does not intend to enact meaningless or useless legislation. Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 570–71, 232 P.3d 856 (2010); State v. Hendrix, 289 Kan. 859, 863, 218 P.3d 40 (2009).

Chavez urges this court to invoke doctrines such as lenity to resolve the inconsistencies in the sentencing and parole statutes, as we recently did in State v. Horn, 288 Kan. 690, 206 P.3d 526 (2009). It is unnecessary, however, to turn to such interpretive rules in the present case.

In Horn, we addressed a situation in which the legislature, in the same legislative session, prescribed different sentences to be imposed for a single offense. We noted:

“[T]he legislature sent a mixed message during the 2006 session in which it adopted Jessica's Law. That year, it also created the new crimes of terrorism (K.S.A.21–3449) and illegal use of weapons of mass destruction (K.S.A.21–3450). Both those statutes included attempts as a means of committing the crimes and clarified that the crimes were off-grid felonies. The legislature then took the further step of amending K.S.A. 21–3301(c), which ranks an attempt to commit an off-grid felony as a nondrug severity level 1, to specify that ‘[t]he provisions of this subsection shall not apply to a violation of attempting to commit the crime of terrorism pursuant to K.S.A. 21–3449, ... or of illegal use of weapons of mass destruction pursuant to K.S.A. 21–3450.’ Inexplicably, the legislature did not also include Jessica's Law as an exception to K.S.A. 21–3301(c). In other words, the legislature demonstrated an ability to clarify when it did not want the sentencing provision of K.S.A. 21–3301(c) to apply to an attempt to commit an off-grid felony, but chose not to do so with Jessica's Law.” Horn, 288 Kan. at 692–93, 206 P.3d 526.

In Horn, we were presented with the provisions of two separate statutes, K.S.A. 21–3301(c) and K.S.A. 21–4643(a)(1)(G), each of which plainly applied to the sentencing of attempted aggravated criminal sodomy. Our task was to determine which statute controlled Horn's sentence. We applied the rule of lenity to resolve the conflict in favor of the accused. 288 Kan. 690, Syl. ¶ 3, 206 P.3d 526. We explicitly elected not to apply the rule of construction that a specific statute controls over a general statute. 288 Kan. at 692, 206 P.3d 526.

In the present case, however, the statutory construction task is different from that presented in Horn, in that we are called upon to reconcile two provisions within the same subsection of the same statute, i.e., subsection (b) of K.S.A. 22–3717. That circumstance triggers a responsibility that this court consider the various provisions of the act in pari materia with a view of reconciling and bringing the provisions into workable harmony, if possible. See State v. Raschke, 289 Kan. 911, 914, 219 P.3d 481 (2009).

The conflict exists because Chavez' conviction for the off-grid count of aggravated indecent liberties with a child subjects him to the parole eligibility provision of subsection (b)(2) because he was “sentenced to imprisonment for an off-grid offense committed on or after July 1, 1999,” and at the same time subjects him to the parole eligibility provision of subsection (b)(5) because he was “sentenced to imprisonment pursuant to K.S.A. 21–4643, and amendments thereto, committed on or after July 1, 2006.” K.S.A. 22–3717(b)(2), (b)(5). In other words, the parole eligibility rules of subsections (b)(2) and (b)(5) overlap.

K.S.A. 22–3717(b)(2) was amended to its current form in 1999. L. 1999, ch. 164, sec. 20. K.S.A. 21–4643(a)(1) and K.S.A. 22–3717(b)(5) were enacted in 2006. L. 2006, ch. 212, secs. 2, 19. Subsection (b)(5) was added to K.S.A. 22–3717 by H.B. 2576, which explicitly referred back to the new provision in section 2 of the bill that established the 25–year mandatory minimum term of imprisonment which would become part of K.S.A. 21–4643, Jessica's Law. L. 2006, ch. 212, sec. 19. Obviously, the addition of subsection (...