State v. Coutcher

• Decision Date: 04 March 1967
• Docket Number: No. 44557,44557
• Parties: STATE of Kansas, Appellee, v. Robert A. COUTCHER, Appellant.
• Court: Kansas Supreme Court

Page 865

424 P.2d 865

198 Kan. 282

STATE of Kansas, Appellee, v. Robert A. COUTCHER, Appellant.

No. 44557.

Supreme Court of Kansas.

March 4, 1967.

Syllabus by the Court

1. A legislative enactment which enlarges the jurisdictional age limits of the juvenile court to include sixteen and seventeen-year-old male persons constitutes a change in the substantive law, and will not be construed as having retroactive application to criminal cases pending or determined before the effective date of the act in the absence of language disclosing a contrary legislative intent.

2. The exercise of reasonable discretion in the application of a law to those of the same class does not necessarily or generally render the law unconstitutional as depriving one of equal protection of the law. (Following Gladen v. Stae, 196 Kan. 586, 413 P.2d 124.)

3. The exercise of discretion by a county attorney in seeking to invoke the provisions of the habitual criminal act (K.S.A. 21-107a) without a showing of discrimination by reason of willful, arbitrary, designed, deliberate, intentional or concerted action, does not deprive one of due process or equal protection of the law guaranteed by the Fourteenth Amendment to the United States Constitution in a case where an enhanced penalty was imposed under the act. (Following Gladen v. State, 196 Kan. 586, 413 P.2d 124.)

4. Where the defendant in a criminal action is charged with the illegal possession and sale of marijuana in violation of K.S.A. 65-2502 and is found guilty, a sentence of eighteen years to the Kansas State Penitentiary, pursuant to the provisions of K.S.A. 65-2519a and K.S.A. 21-107a, for a third felony conviction does not impose cruel and unusual punishment upon the defendant in violation of the Eighth Amendment to the Constitution of the United States and Section 9 of the Kansas Bill of Rights, upon the record presented for review.

William L. Rees, Topeka, argued the cause, and Hall Smith and Robert L. Reed, Topeka, were with him on the brief, for appellant.

Robert D. Hecht, County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., was with him on the brief, for appellee.

SCHROEDER, Justice.

This is a criminal action in which Robert A. Coutcher (defendant-appellant) was charged with the illegal possession and sale of marijuana in violation of K.S.A. 65-2502. He was tried to a jury which found him guilty, and the trial court sentenced him to serve a term of eighteen years in the Kansas State Penitentiary pursuant to the provisions of K.S.A. 65-2519a and 21-107a, on the ground the appellant had been twice previously convicted of felonies. Appeal has been duly perfected.

The only questions raised on appeal relate to the sentence given the appellant.

The record is barren of any evidence pertaining to the offense, other than the information, a portion of the journal entry, and evidence of prior convictions. We must therefore rely upon the statement of facts made by the appellant before discussing and giving consideration to his respective contentions of error.

The appellant was charged along with a codefendant, Raymond Sanchez, in the district court of Shawnee County, Kansas with one count of illegal possession and sale of marijuana.

The trial disclosed that the offense occurred on the 11th day of December, 1964, after two and one-half months of repeated, continuous and admitted solicitations by a special investigator for the Shawnee County sheriff and agents of the Federal Bureau of Narcotics, when the appellant in company with Sanchez delivered a few ounces of marijuana to persons who were in fact federal agents.

The identity of the officers and investigators was not disclosed at the time and no arrest was made until the 8th day of March, 1965. In the interim the officers and agents made repeated attempts to get the appellant to procure additional marijuana, but were unsuccessful. On the 8th day of March, 1965, the appellant and Sanchez were arrested and both were bound over for trial to the district court on the 22nd day of April, 1965.

On the 19th day of October, 1965, Sanchez was granted a severance and allowed to plead guilty on an amended 'misdemeanor' charge and was placed on probation. The appellant, through counsel, offered to make a similar disposition of his case, by pleading guilty to a misdemeanor, but his offer was rejected by the county attorney. The appellant was convicted on the felony charge in a trial which commenced on the 6th day of December, 1965, and concluded on the 8th day of December, 1965.

On the 11th day of January, 1966, the appellant was sentenced to eighteen years at hard labor in the Kansas State Penitentiary at Lansing, Kansas, pursuant to K.S.A. 65-2519a and 21-107a, on the ground that he had two prior felony convictions.

At the time the offense in the instant case was committed, the appellant was just over twenty years of age and Sanchez nearly twenty-one years of age. Sanchez had previously been charged in the district court of Shawnee County, Kansas, with burglary and larceny of a liquor store in September, 1962, when he was nearly nineteen years of age. In that case Sanchez, on the 23rd day of January, 1963, pleaded guilty to an amended charge of grand larceny and was placed on probation.

The two prior felony convictions of the appellant occurred in the year 1961 when he was sixteen years of age. In April, 1961, the appellant was charged with burglary and larceny in the district court of Shawnee County, and while at liberty on bond prior to trial committed the offense of first degree arson in June, 1961. He was charged with the arson in a separate case in the district court of Shawnee County, Kansas. On the 6th day of October, 1961, the appellant pleaded guilty to the charges in both cases and was sentenced to the Kansas State Industrial Reformatory at Hutchinson, Kansas, where he was committed and served time. (The sentence was identical in each case and made to run concurrently with the sentence in the other case.)

The sentencing of the appellant in the instant case did not occur until the 11th day of January, 1966, after the effective date of K.S.A.1965 Supp. 38-802, which raised the jurisdictional age limit for juveniles to eighteen years.

The appellant first contends that when the legislature raised the jurisdictional age limit for juveniles to eighteen years, it did not intend that past violations of law which were felonies when committed, but which would now constitute only acts of delinquency, should be used as a basis for enhancing the penalty under the habitual criminal act.

The thrust of the appellant's argument on this point is that the habitual criminal act, which provides for enhanced penalty in criminal cases where there have been prior felony convictions, is to be regarded like all criminal statutes, and must be strictly construed. (Citing, annotations in 58 A.L.R. 20 and 82 A.L.R. 345; State v. Durham, 177 Or. 574, 164 P.2d 448, 162 A.L.R. 422 (1945); and 25 Am.Jur., Habitual Criminals, § 2, p. 260.) He then argues the conviction of a juvenile does not constitute a felony and will not support an increased sentence under 21-107a, supra. (Citing, State v. Fountaine, 196 Kan. 638, 414 P.2d 75; and McCarty v. Hudspeth, 166 Kan. 476, 201 P.2d 658.)

The appellant concedes no case has been found in which the primary question he presents was involved, but contends the rule of strict construction is to be given real effect-that it is sufficient to prevent the application of the habitual criminal statute in situations where the statutes are ambiguous or the legislative intent is uncertain.

As we construe the appellant's argument, he contends the act amending the juvenile code, to increase the age of juveniles to eighteen years, is ambiguous or uncertain as to the legislative intent, and by giving a strict construction to the habitual criminal act the juvenile code, as amended, is to be given retroactive effect, thereby transforming the prior felony convictions of the appellant to mere acts of delinquency because the appellant was under eighteen years of age when the acts were committed.

Upon analyzing the appellant's argument we find that it has no merit. The authorities upon which he relies cannot be regarded as giving support to his ultimate conclusion.

It may be noted the appellant's argument ignores K.S.A. 1965 Supp. 38-808(b), which provides that a child sixteen years of age or over but less than eighteen may be referred by the juvenile court to the district court upon a finding that the child would not be amenable to juvenile court proceedings. Therefore, even under the appellant's theory he cannot rule out the possibility that he might have been prosecuted as an adult had the juvenile court waived its jurisdiction. (See, State ex rel. Londerholm v. Owens, 197 Kan. 212, 416 P.2d 259.)

Our decision on the point in question, however, is controlled by State v. Augustine, 197 Kan. 207, 416 P.2d 281. There the question was whether the provisions of chapter 278 of the Laws of 1965 (now appearing as K.S.A.1965 Supp. 38-802, 38-806, 38-808, 38-815, 38-816, 38-826 and 38-836) had retroactive application to cases pending on January 1, 1966, the effective date of the act. There the court held:

'A legislative enactment which enlarges the jurisdictional age limits of the juvenile court to include sixteen- and seventeen-year-old male persons constitutes a change in the substantive law, and will not be construed as having retroactive application to cases pending on the effective date of the act in the absence of language disclosing a contrary legislative intent.' (Syl. 2.)

If the change made in the juvenile code constitutes a change in the substantive law, as above indicated, and will not be construed as having retroactive application to cases pending on the effective date of the act in the absence of language disclosing a contrary legislative intent, a fortiori, it cannot have retroactive...