State v. Gilley
| Decision Date | 22 January 2010 |
| Docket Number | No. 99,156.,99,156. |
| Parties | STATE of Kansas, Appellant, v. Deanna GILLEY, Appellee. |
| Court | Kansas Supreme Court |
Amanda G. Voth, assistant district attorney, argued the cause, and Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Steve Six, attorney general, were on the brief for appellant.
Janine Cox, of Kansas Appellate Defender Office, argued the cause and was on the brief for the appellee.
Deanna Gilley was convicted of three counts for forgery. Relying on two prior forgery convictions, the district court sentenced her for a third forgery conviction under the progressive sentencing scheme set forth in K.S.A. 21-3710(b)(4), which requires 45 days' imprisonment as a condition of probation and a fine that is the lesser of the amount of the forged instrument or $2,500. The defendant successfully objected to a criminal history being category E. The court modified her criminal history to category G based upon the provisions of K.S.A. 21-4710(d)(11), stating that "[p]rior convictions of any crime shall not be counted . . . if they enhance the . . . applicable penalties." The Court of Appeals vacated her sentence and remanded the case for imposition of sentence with a criminal history of E. We granted defendant's petition for review, reverse the decision of the Court of Appeals, and affirm the judgment of the district court.
Upon complaint filed in Reno County in case No. 07 CR 297, Gilley was charged with three counts of forgery under the provisions of K.S.A. 21-3710(a)(1). Pursuant to a plea agreement and on June 28, 2007, defendant entered a plea of no contest to Counts 1, 2, and 3. There is no mention in the charging document of K.S.A. 21-3710(b), which sets forth the progressive sentencing scheme for a first forgery conviction, a second forgery conviction, and a third or subsequent forgery conviction. The record establishes that defendant did not object to the charges in the complaint. Nor has the defendant raised any concern with the charging document, and we therefore do not address any issue dealing with the complaint filed.
It is apparent from the record that the State, the defendant, and the district court treated each of the three counts in the complaint as a third forgery conviction, requiring the defendant "to serve at least 45 days' imprisonment as a condition of probation, and a fine the lesser of the amount of the forged instrument or $2,500." K.S.A. 21-3710(b)(4). The presentence investigation report reflects this fact, as well as the journal entry of sentence for the three counts of forgery. In addition, the transcript of the sentencing hearing specifies that each count was considered as a third forgery conviction. The sentence for each count was imposed to run concurrently.
The defendant had three prior forgery convictions in case No. 06 CR 678 on December 1, 2006. Based upon her current forgery convictions and her three prior felony forgery convictions, the presentence investigation report identified her criminal history as category E based upon counting four nonperson felony forgery convictions. The defendant objected, claiming that two of her 2006 forgery convictions were used to elevate Count 1 in her present case to a third forgery conviction under K.S.A. 21-3710(b)(4). Thus, according to her argument, these two prior forgery convictions could not be counted in her criminal history under K.S.A. 21-4710(d)(11) because the two prior convictions served to enhance the penalty under Count 1 by requiring a mandatory 45 days in jail as a condition of her probation.
The district court agreed and modified her criminal history from category E (three or more nonperson felonies) to category G (one nonperson felony). The trial court rejected the State's argument that the mandatory 45 days in jail as a condition of probation did not enhance the penalty under Count 1 and also rejected the argument that her present three forgery convictions could serve as a justification for treating her convictions in the present case as third or subsequent convictions.
On the State's appeal, the Court of Appeals determined that Gilley's three forgery convictions were sufficient to warrant the district court sentencing her as a person with a third forgery conviction, thereby making all three of her prior forgery convictions in case No. 06 CR 678 available for use in computing her criminal history:
Thus, the Court of Appeals vacated her sentence and remanded the case with directions that defendant be resentenced with a criminal history of E (three or more nonperson felonies). Gilley, slip op. at 4-5. Because the Court of Appeals reversed on this issue, it found it unnecessary to consider the State's argument that the 45-day term of imprisonment as a condition of Gilley's probation did not constitute an enhancement of the penalty under K.S.A. 21-4710(d)(11). Gilley, slip op. at 5.
We granted Gilley's petition for review wherein she claims that the trial court properly determined her criminal history was category G. Her claim incorporates three questions: (1) Did Gilley's three current forgery convictions in case No. 07 CR 297 provide a basis for treating her forgery conviction in Count 1 as a third conviction; (2) did the use of a conviction for both the purposes of the progressive sentencing scheme under K.S.A. 21-3710(b) and the calculation of a defendant's criminal history violate K.S.A. 21-4710(d)(11); and (3) did the trial court err in setting defendant's criminal history as category G? Gilley's case was heard concurrently with State v. Arnett, (No. 99,508, this day decided), because both cases raise the same questions for our review.
(1) DID DEFENDANT'S THREE CURRENT FORGERY CONVICTIONS IN CASE NO. 07 CR 297 PROVIDE A BASIS FOR TREATING HER FORGERY CONVICTION IN COUNT 1 AS A THIRD CONVICTION?
The defendant was charged with three counts of forgery under K.S.A. 21-3710(a). As noted above, there was no indication in the complaint whether the three counts were charged as third offenses under the progressive sentencing scheme set forth in K.S.A. 21-3710(b)(4). However, we are able to determine from the record as a whole that Count 1 in the complaint was treated as a third conviction based upon defendant's plea to the charge. While not crystal clear, it appears that all three of the charges were treated as third convictions upon defendant's plea to all charges in the complaint.
It is clear from the record that when the defendant entered her plea to Count 1 of the complaint, the two remaining counts were criminal charges, not criminal forgery convictions. Thus, the remaining two charges could not serve as a basis for making defendant's plea to Count 1 a third conviction under K.S.A. 21-3710(b)(4). We conclude that defendant's three forgery convictions in the present complaint under the facts of this case could not serve as a basis for her plea to Count 1 being a third conviction under K.S.A. 21-3710(b)(4).
(2) DID THE USE OF A CONVICTION FOR BOTH THE PURPOSES OF THE PROGRESSIVE SENTENCING SCHEME UNDER K.S.A. 21-3710(B) AND THE CALCULATION OF A DEFENDANT'S CRIMINAL HISTORY VIOLATE K.S.A. 21-4710(D)(11)?
Based upon our resolution above, there existed three prior forgery convictions of the defendant that the court could use to sentence her for a third conviction under Count 1 in case No. 07 CR 297 for a third forgery conviction under the provisions of K.S.A. 21-3710(b)(4). The record clearly establishes that the trial court utilized two of her prior forgery convictions for the purpose of establishing that defendant's plea to Count 1 resulted in a third conviction under K.S.A. 21-3710(b)(4). The question arises whether the two prior forgery convictions enhance the penalty for the defendant's conviction of Count 1 under K.S.A. 21-4710(d)(11) and therefore could not be included in defendant's criminal history.
This case calls on us to interpret two statutes: K.S.A. 21-3710(b) and K.S.A. 21-4710(d)(11). K.S.A. 21-3710 defines the crime of forgery under Kansas law. K.S.A. 21-3710(b)(1) states that "[f]orgery is a severity level 8, nonperson felony." K.S.A. 21-3710(b)(2) through (b)(5) define a progressive sentencing scheme based on the number of forgery convictions that a particular person may have incurred. Those sections provide:
"(5) The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served the mandatory sentence as provided herein." K.S.A. 21-3710(b)(2)-(5).
Gilley was sentenced under K.S.A. 21-3710(b)(4), which requires as a condition of probation a minimum of 45 days in prison and a fine in the lesser amount of either...
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