State v. Gracey
| Decision Date | 06 February 2009 |
| Docket Number | No. 99,310.,99,310. |
| Citation | 200 P.3d 1275 |
| Parties | STATE of Kansas, Appellee, v. Kendrick D. GRACEY, Appellant. |
| Court | Kansas Supreme Court |
Carl Folsom, III, of Kansas Appellate Defender Office, argued the cause, and Sarah Morrison, of the same office, was with him on the briefs for the appellant.
David Lowden, chief appellate attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Stephen N. Six, attorney general, were with him on the briefs for the appellee.
Kendrick D. Gracey appeals from the sentence imposed following a plea of guilty to one count of aggravated indecent liberties with a child.
Kendrick Gracey has an IQ of 50 and was 21 years old at the time of the event that resulted in his conviction. On December 31, 2006, Wichita police investigated a report that Gracey sexually touched a 12-year-old girl. The victim told police that she was asleep on a living-room couch and was awakened by Gracey poking his finger on the outside of her pajama bottoms on top of her vagina. Gracey then ran out of the room. Shortly afterwards he peeked into the living room and gestured for the victim to approach him. He then told the victim that he liked her. In a taped interview, Gracey confirmed the victim's story, adding that he thought she was 16 years old.
Under the facts of this case, the State had several filing options. This court was unable to learn from the record or from the attorneys arguing the case on appeal why the State elected to charge the most severe off-grid offense possible, K.S.A.2006 Supp. 21-3504(a)(3)(A) and (c), subjecting Gracey to a presumptive life sentence with a mandatory minimum 25 years imprisonment under K.S.A.2006 Supp. 21-4643(a)(1)(C). That decision nevertheless was within the discretion of the prosecuting attorney, and on January 4, 2007, the State filed a complaint/information charging Gracey with one count of aggravated indecent liberties with a 12-year-old child. Gracey subsequently entered a plea of guilty to aggravated indecent liberties with a child, and the State agreed to join in requesting a downward durational departure. The district court granted the durational departure but found it was barred by statute from granting the dispositional departure that Gracey sought. The district court sentenced Gracey to a prison term of 55 months, a downward durational departure from the low-end presumptive sentencing range for a severity-level 3, criminal-history H nondrug felony. Gracey filed a timely notice of appeal, and this court assumed jurisdiction under K.S.A. 22-3601(b) and K.S.A. 21-3504(c)(conviction of off-grid person felony).
Gracey initially argues that the district court lacked jurisdiction to sentence him under K.S.A. 21-4643 in light of a charging instrument that did not allege that he was over the age of 18.
Whether an information is sufficient to confer subject matter jurisdiction is a question of law over which an appellate court has unlimited review. State v. McElroy, 281 Kan. 256, 261, 130 P.3d 100 (2006). The test used to evaluate the sufficiency of the charging document depends upon when the issue was first raised. State v. Shirley, 277 Kan. 659, 661, 89 P.3d 649 (2004). When the charging document is challenged for the first time on appeal, the defendant must show that the alleged defect either: (1) prejudiced the defendant's preparation of a defense; (2) impaired the defendant's ability to plead the conviction in any subsequent prosecution; or (3) limited the defendant's substantial rights to a fair trial. McElroy, 281 Kan. at 261, 130 P.3d 100. State v. Hall, 246 Kan. 728, 761, 793 P.2d 737 (1990), overruled in part on other grounds Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003).
The complaint/information reads as follows:
"THE STATE OF KANSAS
Plaintiff
vs
"KENDRICK D. GRACEY
"B/M: DOB: XX/XX/1985
"SSN: XXX-XX-0039
"KDR: 308770621008
Defendant
Case No. 07CR0020
. . . .
"COMES NOW KIM T. PARKER, a duly appointed, qualified and acting Assistant District Attorney of the 18th Judicial District of the State of Kansas, and for and on behalf of said State gives the court to understand and be informed that in the County of Sedgwick, and State of Kansas, and on or about the 31st of December, 2006, A.D., one KENDRICK D. GRACEY did then and there unlawfully, lewdly fondle or touch DHM, a child under fourteen (14) years of age, to-wit: 12 years old, date of birth XX-XX-1994, who was not then married to KENDRICK D. GRACEY, done with the intent to arouse or satisfy the sexual desires of DHM, KENRICK D. GRACEY or both; all of the said acts then and there committed being contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Kansas."
It also states that the charged crime was:
"Contrary to Kansas Statutes Annotated 21-3504(a)(3)(A), Aggravated Indecent Liberties, Off-Grid Person Felony"
K.S.A. 21-3504 reads in relevant part:
"(a) Aggravated indecent liberties with a child is:
. . . .
"(3) engaging in any of the following acts with a child who is under 14 years of age:
(A) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both; . . .
. . . .
(Emphasis added.)
K.S.A. 21-4643 provides for mandatory minimum terms of imprisonment of 25 or 40 years for certain sex offenders, with certain exceptions:
"(a)(1) 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."
In addition, K.S.A. 22-3201(c) requires:
"When relevant, the complaint, information or indictment shall also allege facts sufficient to constitute a crime or specific crime subcategory in the crime seriousness scale."
Gracey contends that the absence of any reference in the charging document to his age is a jurisdictional defect that precluded the district court from sentencing him to an off-grid felony. He further notes that his acknowledgment of rights specifically stated that he was pleading to a severity level 3 crime, and at the plea hearing the district court informed him that he was pleading guilty to a severity level 3 person felony.
The State responds that the charging document set out Gracey's year of birth in its caption and stated at the bottom of the page that the charge was for an off-grid person felony. The validity of a charging instrument is to be tested by reading the document in its entirety, and the elements of the offense may be gleaned from the document as a whole. McElroy, 281 Kan. 256, Syl. ¶ 3, 130 P.3d 100.
The State notes that the plea agreement signed by Gracey and counsel for both parties states that Gracey entered a plea of guilty or nolo contendere to
An analysis of the two competing positions must take place in light of the standard of review. As noted earlier, Gracey must demonstrate that the failure to state his age in the text of the charging instrument prejudiced his preparation of a defense, impaired his ability to plead the conviction in any subsequent prosecution, or limited his substantial rights to a fair trial. See McElroy, 281 Kan. 256, Syl ¶ 2, 130 P.3d 100. In this context, the charging deficiency, if any, does not render the conviction invalid. The document averred in its caption that he was over the age of 18 and stated at the bottom that the charge was for an off-grid felony. The document specified all the elements of aggravated indecent liberties with a child. All of these circumstances demonstrate that Gracey was adequately informed of both the crime charged and the penalty. He does not contend that the preparation of his defense or his rights to a fair trial were impaired, and the conviction has not been shown to affect any subsequent prosecution. Based on our limited standard of review, we do not find reversible error in the district court's decision to apply K.S.A. 21-4643 in sentencing Gracey.
Gracey next argues that the district court erred in refusing to consider a dispositional departure. The court found that it had statutory authority to impose a durational departure from the minimum sentence set out in K.S.A.2006 Supp. 21-4643(a)(1), in effect at time of offense (enacted L.2006 ch. 212, sec. 2), but it lacked the authority to impose a dispositional sentence of probation. Gracey argues on appeal that the district court erred in refusing to consider probation as a sentencing option.
This issue invites the court to analyze the Kansas statutory sentencing scheme. Interpretation of a sentencing statute is a question of law, and an appellate court's standard of review is unlimited. State v. Ruiz-Reyes, 285 Kan. 650, 653, 175 P.3d 849 (2008). This court has...
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