State v. Evans
| Decision Date | 13 February 2015 |
| Docket Number | 111,143. |
| Parties | STATE of Kansas, Appellant, v. Richard EVANS, III, Appellee. |
| Court | Kansas Court of Appeals |
Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellant.
Michael J. Gunter, of Gunter & Associates, of Kansas City, Missouri, for appellee.
Before PIERRON, P.J., BRUNS and SCHROEDER, JJ.
The State appeals from the district court's dismissal of two counts of criminal possession of a firearm and one count of possession of marijuana after a prior conviction filed against Richard Evans, III. The court found Evans' prior guilty pleas to be felonies in Missouri, which resulted in suspended imposition sentences (SIS), were not convictions to serve as predicate convictions under K.S.A.2013 Supp. 21–6304 or K.S.A.2013 Supp. 21–5706. Below, the court relied on its interpretation of State v. Pollard, 273 Kan. 706, 714, 44 P.3d 1261 (2002). The State dismissed the remaining charge of no tax stamp on drugs and appealed from the dismissal of two criminal possession of firearms counts and one count of possession of marijuana. We reverse and remand.
In April 2013, the State charged Evans with various felonies. Counts I and II were charges of criminal possession of a firearm by a convicted felon in violation of K.S.A.2013 Supp. 21–6304. Count III was possession of marijuana after a prior conviction of possession, in violation of K.S.A.2013 Supp. 21–5706(b). Count IV was failure to affix a drug tax stamp to the marijuana in violation of K.S.A. 79–5208.
At the preliminary hearing, the State presented—without objection—certified copies of court records from Missouri. The records established that Evans had pled guilty to at least one felony and to another charge of possession of marijuana. During the hearing, police officers testified they had contacted the occupants of a Johnson County, Kansas, home on suspicion of drug activity. Evans was one of those occupants. During the investigation, officers found a .40 caliber handgun on Evans' person. In addition, a search of Evans' car resulted in the finding of another handgun and approximately 30 grams of marijuana. Officers saw that there was no drug stamp tax affixed to the marijuana.
The district court bound Evans over for trial, although there was discussion as to whether the prior Missouri offenses were sufficient to serve as convictions for the weapons and second-time marijuana possession charges.
Prior to trial, Evans filed a motion to dismiss the firearm and possession of marijuana charges. He argued that all three of these charges required a prior conviction of either a felony or a prior conviction of possession of marijuana as predicate offenses. Evans argued his prior charges in Jackson County, Missouri, were guilty pleas with SIS. He also asserted he had successfully completed the probation terms for those charges. Evans contended that under Missouri law, successful completion of the probation closed the Missouri case and did not constitute a conviction. Citing Pollard, Evans argued the Missouri charges did not constitute convictions and could not serve as predicate offenses supporting the firearms and second-time possession of marijuana charges. The State filed a response opposing Evan's motion to dismiss, also relying on Pollard.
The district court held a hearing in November 2013, where both sides argued whether a Missouri conviction with SIS constituted a conviction for purposes of the weapons and marijuana charges filed in Kansas. The State presented certified copies of documents from two Missouri criminal cases. In case No. 0816–CR04967, Evans had been arrested for possession of approximately 28 grams of marijuana and pled guilty to that charge. The Missouri court accepted the plea and suspended imposition of that sentence for 1 year. The court ordered Evans to pay court costs and to be supervised through the Midwest ADP drug program.
In case No. 0916–CR06242, the charging documents reflected that Evans had been charged in Jackson County, Missouri, with three counts of the sale of more than 5 grams of marijuana and one count of possession of more than 35 grams of marijuana. Later documents reflected Evans had pled guilty in June 2010 to the three counts of sale of a controlled substance, class B felonies under Missouri law. The Missouri court found Evans guilty beyond a reasonable doubt of those charges. The court suspended imposition of sentence for 3 years and ordered that the Missouri Board of Probation and Parole supervise Evans during that period. The court also ordered Evans to pay $68 to the Crime Victims' Compensation Fund and court costs. In January 2011, the court found Evans had violated the terms of his probation and ordered him to remain on suspended status until otherwise released.
During the hearing on the Johnson County, Kansas, cases, Evans presented documentary evidence—not included in the record—that he had been released from his SIS in December 2011. He argued he had successfully completed his probation on all the charges and under Missouri law the charges were not convictions. Defense counsel acknowledged that the charges could be used against Evans at sentencing if he was ever charged again in Missouri but it did not make him a felon at the time he possessed the weapon in the case at bar. Evans relied heavily on language in Pollard, 273 Kan. at 714, 44 P.3d 1261, that limited its ruling to the facts in the case and did “not decide if the result would be the same if the Kansas offense had occurred after the expiration” of a Missouri defendant's probation. Defense counsel argued that although Evans had been found guilty in the Missouri cases, no sentence was imposed, the judgment was not final, and as such, it was not a conviction.
Both parties agreed that Pollard controlled the decision, but they disagreed as to the impact of Pollard. Ultimately, the district court announced from the bench that Evans had successfully completed his SIS in Missouri and, therefore, he had not been convicted. As a result, the predicate offenses for the weapons charges and the second-time possession of marijuana charge had not been established, and the court dismissed those charges.
Two days later, the State filed a motion asking the district court to reconsider the order of dismissal. At another hearing on December 13, 2013, the State again argued a conviction for purposes of the predicate act would be determined by Kansas law, not Missouri law. Based upon Pollard, the State again argued Evans' prior guilty pleas to felony charges of sale and possession of marijuana were sufficient to constitute convictions in Kansas, notwithstanding the Missouri SIS statute. However, the court denied the motion.
A journal entry dismissing all charges except the drug tax stamp charge was filed on December 3, 2013. Shortly thereafter, the State dismissed the remaining charge and filed a notice of appeal challenging the dismissal of the weapons and possession of marijuana charges.
The sole issue on appeal is whether the district court misinterpreted the statutes and thereby improperly dismissed the weapons and possession of marijuana charges the State had filed against Evans. Thus, the question is whether Evans' guilty pleas with successful completion of the SIS constituted convictions under K.S.A.2013 Supp. 21–6304 and K.S.A.2013 Supp. 21–5706(c)(2)(B).
Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014). When interpreting a statute, the court must first determine the legislature's intent through the statute's language, by giving words their ordinary meaning. State v. Brooks, 298 Kan. 672, 685, 317 P.3d 54 (2014). Even when statutory language is clear, however, the appellate court can consider certain canons of construction and construe statutes in order to avoid “unreasonable or absurd results.” Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106, cert. denied –––U.S. ––––, 134 S.Ct. 162, 187 L.Ed.2d 40 (2013).
K.S.A.2013 Supp. 21–6304(a)(1) defines criminal possession of a firearm as possession of such a weapon by a person who “[h]as been convicted of a person felony or a violation of article 57 of chapter 21 ... or a crime under a law of another jurisdiction which is substantially the same as such felony or violation....”
K.S.A.2013 Supp. 21–5706 prohibits unlawful possession of controlled substances as designated Chapter 65 of the statutes. See K.S.A.2013 Supp. 21–5706(b)(4). Marijuana is included in the list of controlled substances. K.S.A.2013 Supp. 65–4105(d)(16). A first-time violation of K.S.A. 2103 Supp. 21–5706(b)(4) is a class A misdemeanor. K.S.A.2013 Supp. 21–5706(c)(2)(A). However, a violation of K.S.A.2013 Supp. 21–5706(b)(4) is a severity level 5 drug felony if the person “has a prior conviction under such subsection [or] under a substantially similar offense from another jurisdiction....” (Emphasis added.) K.S.A.2013 Supp. 21–5706(c)(2)(B). Article 57 of the criminal code does not contain a definition of “prior conviction.”
The revised criminal code defines a “conviction” as including “a judgment of guilty entered upon a plea of guilty.” K.S.A.2013 Supp. 21–5111(d). Nothing in that definition specifically requires any particular type of sentence be imposed in order to constitute a conviction. When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. Brooks, 298 Kan. at 685, 317 P.3d 54.
Despite the broad nature of the term “conviction” found at K.S.A.2013 Supp. 21–5111(d) (and its predecessor, K.S.A. 21–3110 [4] ), Evans argues that the prior guilty pleas he entered in the two Missouri cases—that included felony charges and a...
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State v. Rohra
...of felonious possession because Oklahoma would treat it as such. But none of the State's cited precedents is authoritative here. In State v. Evans, the defendant's prior offense in Iowa resulted in a conviction and sentence, with suspended execution of sentence and probation. 410 S.W.3d 258......