State v. Greever

• Decision Date: 05 August 1994
• Docket Number: No. 70383,70383
• Citation: 19 Kan.App.2d 893,878 P.2d 838
• Parties: STATE of Kansas, Appellee, v. Steven F. GREEVER, Appellant.
• Court: Kansas Court of Appeals

Page 838

878 P.2d 838

19 Kan.App.2d 893

STATE of Kansas, Appellee, v. Steven F. GREEVER, Appellant.

No. 70383.

Court of Appeals of Kansas.

Aug. 5, 1994.

Syllabus by the Court

1. When construing a statute, the intent of the legislature governs when that intent can be ascertained from the statute.

2. The purpose of K.S.A. 21-4504 and amendments thereto is to provide additional penalties for the commission of felonies subsequent to the first one and thereby to deter the criminally inclined from repeated felonies.

3. Prior to its amendment in 1989, K.S.A. 21-4504 made no distinction concerning what types of prior felonies could be used to enhance the sentence.

4. In the 1989 amendment to K.S.A. 21-4504, the legislature made a distinction between article 34, 35, and 36 crimes and other crimes. It provided for a two-tiered enhancement for the article 34, 35, and 36 crimes, while providing for sentence enhancements for other offenses only after a third or subsequent conviction.

5. In 1990, the legislature amended K.S.A. 21-4504 to clarify the previous convictions to which the enhancement provisions apply.

6. As a result of the 1989 and 1990 amendments to K.S.A. 21-4504, sentences for article 34, 35, and 36 crimes can only be enhanced for prior conviction of article 34, 35, or 36 crimes or comparable felony offenses under the laws of another state, the federal government, or a foreign government, and sentences for non-article 34, 35, and 36 crimes can only be enhanced for prior convictions of non-article 34, 35, and 36 crimes or comparable felony offenses under the laws of another state, the federal government, or a foreign government.

Daniel D. Creitz, of Hines, Ahlquist & Creitz, P.A., Erie, for appellant.

Robert Forer, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before BRAZIL, P.J., and PIERRON and GREEN, JJ.

BRAZIL, Presiding Judge.

Steven F. Greever was convicted of forgery pursuant to K.S.A. 21-3710(a)(2), and the trial court enhanced his sentence under K.S.A.1993 Supp. 21-4504(c). He appeals, contending that the court erred by enhancing his sentence under 21-4504(c) and by not reciting the specific findings upon which the enhanced sentence was based and that K.S.A.1993 Supp. 21-4504 is unconstitutionally vague. We vacate the sentence and remand with directions.

Appellate courts will not disturb a sentence imposed by a trial court on grounds that it is excessive " 'provided it is within the limits prescribed by law and within the realm of discretion on the part of the trial court, and the sentence is not the result of partiality, prejudice, oppression, or corrupt motive.' " State v. Warren, 252 Kan. 169, 183, 843 P.2d 224 (1992).

Greever argues that his sentence was excessive. In effect, he argues an abuse of discretion by the trial court. He advances several alternative theories in support of this argument. First, Greever argues that under K.S.A.1993 Supp. 21-4504(c), an article 34 crime cannot be used to enhance the type of felony for which he was convicted. Second, he argues the sequence of commissions and convictions of his prior crimes was such that only one of his first two convictions could have been used to enhance the current sentence. Third, Greever argues that in order for the sentence enhancement to be proper, the prior convictions must be for the same crime (forgery) or the convictions must at least be for article 37 crimes.

The State argues that Greever's interpretation of K.S.A.1993 Supp. 21-4504 is contrary to the intent and wording of the statute and would lead to absurd results. The State concedes that only one of the first two convictions can be used to enhance the current sentence. Nevertheless, the State argues two prior convictions remain that could properly have been used by the trial court to enhance the sentence.

K.S.A.1993 Supp. 21-4504 states:

"(a) If a defendant is convicted of a felony specified in article 34, 35 or 36 of chapter 21 of Kansas Statutes Annotated, the punishment for which is confinement in the custody of the secretary of corrections after having previously been convicted of any such felony or comparable felony under the laws of another state, the federal government or a foreign government, the trial judge may sentence the defendant as follows, upon the motion of the prosecuting attorney:

(1) The court may fix a minimum sentence of not less than the least nor more than twice the greatest minimum sentence authorized by K.S.A. 21-4501 and amendments thereto, for the crime for which the defendant is convicted; and

(2) the court may fix a maximum sentence of not less than the least nor more than twice the greatest maximum sentence provided for the crime by K.S.A. 21-4501 and amendments thereto.

"(b) If a defendant is convicted of a felony specified in article 34, 35 or 36 of chapter 21 of Kansas Statutes Annotated; having been convicted at least twice before for any such felony offenses or comparable felony offenses under the laws of another state, the federal government or a foreign government, the trial judge shall sentence the defendant as follows, upon motion of the prosecuting attorney:

(1) The court shall fix a minimum sentence of not less than the greatest nor more than three times the greatest minimum sentence authorized for the crime for which the defendant is convicted by K.S.A. 21-4501 and amendments thereto; and

(2) the court may fix a maximum sentence of not less than the least nor more than three times the greatest maximum sentence provided for the crime by K.S.A. 21-4501 and amendments thereto.

"(c) If a defendant is convicted of a felony other than a felony specified in article 34, 35 or 36 of chapter 21 of Kansas Statutes Annotated, having been convicted at least twice before for any such felony offenses or comparable felony offenses under the laws of another state, the federal government or a foreign government, the trial judge shall sentence the defendant as follows, upon motion of the prosecuting attorney:

(1) The court shall fix a minimum sentence of not less than the greatest nor more than two times the greatest minimum sentence authorized for the crime for which the defendant is convicted by K.S.A. 21-4501 and amendments thereto; and

(2) the court may fix a maximum sentence of not less than the least nor more than two times the greatest maximum sentence provided for the crime by K.S.A. 21-4501 and amendments thereto." (Emphasis added.)

The Kansas Court of Appeals has clarified the use of prior crimes to enhance a sentence under 21-4504. State v. Wilson, 6 Kan.App.2d 302, 627 P.2d 1185, aff'd 230 Kan. 287, 634 P.2d 1078 (1981). Under Wilson, "it is required that there be the commission and conviction of one offense, followed by the commission and conviction of a second offense, followed by commission of the principal offense upon conviction of which sentence enhancement is sought." 6 Kan.App.2d at 306, 627 P.2d 1185.

Both parties agree that, under Wilson, the trial judge could not use both the theft (conviction on June 26, 1985) and the attempted aggravated robbery (committed on February 26, 1985) to double Greever's sentence. Greever committed the second felony prior to his conviction on the first felony. Wilson precludes the trial court from using both prior convictions. However, as the State correctly argues, the trial court may use the remaining two crimes to double Greever's sentence under K.S.A.1993 Supp. 21-4504(c), unless we accept Greever's interpretation of the statute, as set out below.

Greever's remaining arguments address the interpretation of K.S.A.1993 Supp. 21-4504. Greever's current conviction, forgery, is a crime under article 37 of chapter 21. Thus, subsection (c) of K.S.A.1993 Supp. 21-4504 is applicable: "If a defendant is convicted of a felony other than a felony specified in article 34, 35 or 36 of chapter 21 of Kansas Statutes Annotated, having been convicted at least twice before for any such felony offenses," the trial judge may double the sentence authorized by K.S.A.1993 Supp. 21-4501. Greever argues that only prior crimes other than article 34, 35, or 36 crimes may be used to enhance his sentence.

When construing a statute, the intent of the legislature governs when that intent can be ascertained from the statute. State v. Phifer, 241 Kan. 233, 238, 737 P.2d 1 (1987). K.S.A. 21-4504 has been amended several times since its enactment. The 1989 and 1990 amendments shed some light on what the legislative intent might be concerning the version questioned by Greever.

Prior to the 1989 amendment, 21-4504 provided for the doubling of a defendant's sentence "[i]f a defendant is convicted of a felony a second time, the punishment for which is confinement in the custody of the secretary of corrections." (Emphasis added.) K.S.A. 21-4504(a). A defendant's sentence could be tripled "[i]f a defendant is convicted of a felony a third or subsequent time." (Emphasis added.) K.S.A. 21-4504(b). No distinction was made concerning what types of prior felonies could be used to enhance the sentence.

The 1989 amendments provided that "[i]f a defendant is convicted of a felony specified in article 34, 35 or 36 of chapter 21 ... a second time," the sentence could be doubled. K.S.A.1989 Supp. 21-4504(a). Further, "[i]f a defendant is convicted of a felony specified in article 34, 35 or 36 of chapter 21 ... a third or subsequent time," the sentence could be tripled. K.S.A.1989 Supp. 21-4504(b). Finally, "[i]f a defendant is convicted of a felony other than a felony specified in article 34, 35 or 36 of chapter 21 ... a third or subsequent time," the sentence could be doubled. K.S.A.1989 Supp. 21-4504(c). The legislature thus made a distinction between article 34, 35, and 36 crimes and other crimes; article 34, 35, and 36 crimes involve crimes against persons and are generally more dangerous or violent than other crimes. It provided a two-tiered enhancement for article 34, 35, and 36 crimes,...