State v. Garcia, 87,691.

• Decision Date: 25 October 2002
• Docket Number: No. 87,691.,87,691.
• Citation: 56 P.3d 797,274 Kan. 708
• Parties: STATE OF KANSAS, Appellee, v. JONATHAN DEWAYNE GARCIA, Appellant.
• Court: Kansas Supreme Court

274 Kan. 708

56 P.3d 797

STATE OF KANSAS, Appellee, v. JONATHAN DEWAYNE GARCIA, Appellant.

No. 87,691.

Supreme Court of Kansas.

Opinion filed October 25, 2002.

J. Patrick Lawless, acting chief appellate defender, argued the cause and was on the briefs for appellant.

Edmond D. Brancart, county attorney, argued the cause, and Keri A. Kish, assistant county attorney, and Carla J. Stovall, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

SIX, J.:

Jonathan DeWayne Garcia appeals his sentences following a no contest plea to aggravated battery and incitement to riot.

The issues are whether: (1) the fact that Garcia's crimes were gang related under K.S.A. 2001 Supp. 21-4704a(k) must be proven to a jury beyond a reasonable doubt before that fact can be used to impose a prison term rather than probation, (2) the district court erred in failing to make adequate findings on the record to support imposition of a prison term under K.S.A. 2001 Supp. 21-4704a(k), and (3) there was sufficient evidence to support the district court's conclusion that Garcia's crimes were gang related.

Our jurisdiction arises from a transfer on our motion under K.S.A. 20-3018(c).

We affirm the district court's conclusion that Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed.2d 435, 120 S. Ct. 2348 (2000), does not apply to a prison sentence imposed under K.S.A. 2001 Supp. 21-4704a(k). We vacate Garcia's sentences on the basis that the district court failed to make adequate findings on the record as required by K.S.A. 2001 Supp. 21-4704a(k). Because we vacate Garcia's sentences and remand for resentencing, we do not reach the sufficiency of the evidence issue.

FACTS

Garcia was arrested, along with Charles Sanchez, for Garcia's involvement in the beating of four men in Dodge City. Garcia was charged with four counts of aggravated battery, aggravated robbery, aggravated intimidation of a witness or victim, and incitement to riot. After a preliminary hearing, Garcia agreed to plead no contest to one count of aggravated battery, a severity level 7 felony, and one count of incitement to riot, a severity level 8 felony, in exchange for the dismissal of the remaining charges.

Garcia's criminal history score of G, combined with the severity level of his crimes, placed him in sentencing box 7-G for the aggravated battery and box 8-G for the incitement to riot. The sentencing guidelines called for presumptive probation for both offenses, with underlying sentencing ranges of 15-16-17 months for the aggravated battery and 9-10-11 months for the incitement to riot. See K.S.A. 2001 Supp. 21-4704a(a).

The district court imposed a 16-month prison term for the aggravated battery conviction to run consecutive to an 8-month prison term for the incitement to riot conviction.

DISCUSSION

Garcia argues that the fact the crimes were gang related, as set forth in K.S.A. 2001 Supp. 21-4704a(k), must be proven to a jury beyond a reasonable doubt before that fact can be used to impose a prison term rather than probation. Garcia argues that because the district court here made the required finding by a preponderance of the evidence, his sentence violates Apprendi and must be vacated.

Garcia's argument requires interpretation of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., and is a question of law subject to unlimited review. See State v. Crow, 266 Kan. 690, 694, 974 P.2d 100 (1999). K.S.A. 2001 Supp. 21-4704a(k) states, in pertinent part:

"If it is shown at sentencing that the offender committed any felony violation for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further or assist in any criminal conduct by gang members, the offender's sentence shall be presumed imprisonment. Any decision made by the court regarding the imposition of the optional nonprison sentence shall not be considered a departure and shall not be subject to appeal."

Apprendi held: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490.

In State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), we applied Apprendi to Kansas' scheme for imposing upward departure sentences under K.S.A. 2001 Supp. 21-4716. We concluded that because the statute allows the district court to impose a sentence beyond the statutory maximum based upon a court finding of certain aggravating factors made by a preponderance of the evidence, the statute is unconstitutional on its face and void. 271 Kan. at 413-14.

In State v. Carr, 274 Kan. 442, 53 P.3d 843 (2002), we considered whether Apprendi applies to upward dispositional departures under the KSGA. The majority reasoned that "[p]robation and parole are dispositions alternate to the serving of a sentence, and neither probation nor parole increases or decreases the sentence required to be imposed by statute." 274 Kan. 442, Syl. ¶ 3. A majority concluded that because imposition of a prison term in a presumptive probation case does not increase the sentence beyond the statutory maximum, Apprendi does not apply to dispositional departures under K.S.A. 2001 Supp. 21-4716. 274 Kan. at 452.

The question here becomes whether the district court's conclusion that Garcia's crimes were gang related, triggering a presumptive prison sentence, increased the penalty for his crimes beyond the statutory maximum. The answer is "No."

We have not had occasion to apply Apprendi to K.S.A. 2001 Supp. 21-4704a(k). However, State v. Dean, 273 Kan. 929, 46 P.3d 1130 (2002), considered whether a prison term imposed under K.S.A. 2001 Supp. 21-4603d(f), where the guidelines otherwise called for presumptive probation, was unconstitutional based on Apprendi.

K.S.A. 2001 Supp. 21-4603d(f) states, in pertinent part:

"When a new felony is committed while the offender ... is on probation, assignment to a community correctional services program, parole, conditional release, or postrelease supervision for a felony, ... 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."

In Dean, we reasoned:

"A `departure' is a sentence which is inconsistent with the presumptive sentence. K.S.A. 21-4703(f). Because Dean's K.S.A. 2001 Supp. 21-4603d(f) prison sentence is not considered a departure, it is a presumptive sentence. As such, Dean's prison sentence does not exceed the statutory maximum punishment for his crime, and Apprendi does not apply." 273 Kan. at 935-36.

The Court of Appeals, faced with the issue we addressed in Dean, came to a like conclusion in State v. Tisdale, 30 Kan. App. 2d 524, 525, 43 P.3d 835, rev. denied 274 Kan. 1118 (2002):

"K.S.A. 2001 Supp. 21-4603d(f) (formerly 21-4603d[11]) specifically provides for the imposition of an incarceration sentence when the current crime is committed while the offender is on parole. In such a case, `imposition of a prison sentence for the new crime does not constitute a departure.' Consequently, Tisdale did not receive a departure sentence. Gould and Apprendi do not apply."

Garcia counters that Dean and Tisdale are distinguishable on the basis of the nature of the factual findings required to trigger the presumptive prison term. Under K.S.A. 2001 Supp. 21-4603d(f), the fact involved—whether a crime was committed while the offender was on probation, parole, postrelease, etc.—is fairly concrete and easy to verify. The fact that a crime is gang related, on the other hand, is more difficult to prove in that it requires something more than a look at the defendant's criminal history and pre-sentence investigation (PSI) report.

K.S.A. 2001 Supp. 21-4704a(k) provides that gang-related crimes call for presumptive prison sentences. The district court here, upon finding that the crimes were gang related, imposed a presumptive prison term. Following the reasoning of Carr, Dean, and Tisdale, the prison terms imposed here do not exceed the statutory maximum punishment for Garcia's crimes, and Apprendi does not apply. See State v. Beasley (No. 87,786, this day decided) (holding Apprendi does not apply to K.S.A. 2001 Supp. 21-4704a[h]).

Findings under K.S.A. 2001 Supp. 21-4704a(k)

Garcia next contends that the district court failed to make adequate findings on the record to support imposition of a prison term based on the fact that Garcia's crimes were gang related. We agree.

Garcia's PSI report indicated that the provisions of K.S.A. 2001 Supp. 21-4704a(k) applied to both of his crimes, subjecting him to presumptive prison terms for each. Before sentencing, Garcia and the State filed separate briefs in the district court on the application of Gould to K.S.A. 2001 Supp. 21-4704a(k). After a hearing, the district court concluded that a prison sentence imposed under 21-4704a(k) did not amount to an upward departure sentence; thus, the statute was not affected by Gould. The district court deferred a decision on whether to impose a prison term in Garcia's case, referencing 21-4704a(k).

The district court held a second sentencing hearing approximately 2 weeks later. Five witnesses testified on behalf of Garcia, including Sanchez, Garcia's mother, an acquaintance of Garcia's who was affiliated with another gang, Garcia's pastor, and the pastor's wife. After hearing the testimony, the district court made the following comments:

"Mr. Garcia, I have been involved with this case from quite early on. I heard the preliminary hearing. I dealt with the Charles Sanchez case also. The preliminary hearing itself took a great deal of time. The transcript was very large. It contained a great deal of information much of [which] I've reviewed again. I'm hearing some comparisons of

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