State v. Hankins
| Decision Date | 02 September 1994 |
| Docket Number | No. 70449,70449 |
| Citation | 19 Kan.App.2d 1036,880 P.2d 271 |
| Parties | STATE of Kansas, Appellee, v. Darwin HANKINS, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. K.S.A.1992 Supp. 21-4504(c)(1) and (2) are construed and applied.
2. It is an abuse of judicial discretion for a trial court to announce it intends to impose a minimum enhanced sentence and then sentence a defendant to a term of years in excess of the minimum enhanced sentence allowed.
3. K.S.A.1993 Supp. 21-4715(c), setting out the procedure for a defendant to question the criminal history worksheet of a presentence investigation report, is construed and applied.
4. Although the Kansas Sentencing Guidelines Act does not provide for a challenge by the State of the criminal history worksheet of the presentence investigation report, the State must be allowed an opportunity to correct an erroneous criminal history worksheet even though the State was responsible for the drafting of the report in the first place.
5. Denying the State an opportunity to correct an erroneous criminal history worksheet would contravene the intent of the legislature in passing the Kansas Sentencing Guidelines Act and would violate the ethical responsibility of the prosecutor not to permit false information to be reported to the court.
6. K.S.A.1993 Supp. 21-4715 specifies a defendant is entitled to receive a copy of the criminal history worksheet the State intends to use at sentencing prior to the time of sentencing and is entitled to challenge that history. Simply depositing a copy of the worksheet in the judge's chambers, which defense counsel may see, is not compliance with the statute.
7. The State may amend or challenge the criminal history listed in a presentence investigation report, but due process requires such amendment or challenge must be made in writing prior to the time of sentencing, and the court and defendant or defense counsel shall be provided copies in sufficient time for the amended history to be reviewed by the defendant prior to sentencing.
8. If it is impossible for the State to make its challenges to the criminal history worksheet prior to the date of sentencing, the district court must provide the defendant with time to challenge the amended history in compliance with K.S.A.1993 Supp. 21-4715.
9. Under the facts of the case, certified copies of complaints and journal entries of judgment constituted adequate proof of defendant's prior convictions in the absence of a denial of identity.
10. Proof of the possession of any amount of a controlled substance is sufficient to sustain a conviction even though such amount may not be measurable or usable.
11. The Court of Appeals is not at liberty to disregard controlling precedent but must follow Kansas Supreme Court holdings unless some indication exists that the court is departing from its own precedent.
Jessica R. Kunen, Chief Appellate Defender, for appellant.
David Lowden, Asst. Dist. Atty., Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.
Before ELLIOTT, P.J., BRAZIL, J., and RICHARD W. WAHL, District Judge Retired, assigned.
Darwin E. Hankins appeals, following his convictions by a jury of possession of cocaine in violation of K.S.A. 65-4127a and possession of marijuana in violation of K.S.A. 65-4127b. He contends the district court erred in imposing the Habitual Criminal Act and in calculating his criminal history for purposes of the Kansas Sentencing Guidelines Act (KSGA).
On May 7, 1993, Wichita police officer Lisa Rollins was working as a vice officer investigating prostitution. She posed as a prostitute in front of a Wichita motel in an effort to arrest men seeking sex for hire--a "john bust." Generally, men would approach Officer Rollins, negotiate a price, and follow her into the motel where other officers were waiting to arrest them.
Officer Rollins was standing in the parking lot of the motel when Hankins drove into the lot. They negotiated a price, but Hankins was hesitant to follow her into the motel because he felt someone from the motel office was watching. He drove away and parked his car in another location and returned three or four minutes later. He asked Officer Rollins if she got "high." She asked Hankins what he had. Hankins indicated he had some cocaine rocks. As they entered the motel, Hankins was arrested. He was holding a crack pipe in his left hand. The pipe contained a white residue which was later determined to be cocaine. A marijuana cigarette was also confiscated from Hankins. No cocaine rocks were found in Hankins' possession.
Hankins was charged with possession of cocaine, a class C felony, and with possession of marijuana, a class A misdemeanor.
On July 19-20, 1993, a jury trial was held. The State's evidence was largely as summarized above. Defendant testified on his own behalf. He testified he came into possession of the crack pipe after making contact with Officer Rollins. He explained he found the crack pipe on the ground after he parked his car. He said he picked it up because he thought it belonged to one of the persons in the parking lot of the motel. He admitted he knew "some crack might be left behind in that kind of a crack pipe." He testified he did not know at the time of his arrest whether there was residue in the pipe. Hankins also testified he asked Officer Rollins if she ever got "high" but denied telling her he had any drugs.
After the jury began its deliberations, the court received a written question from the jury: "Does the law specify an amount of cocaine or residue as a minimum to establish possession?" The court responded by sending the note back with the written directive: "See instruction # 7." Instruction No. 7 merely stated the elements required to prove the charge of possession of cocaine: "The defendant possessed or had under his control a narcotic drug known as cocaine." The jury returned a verdict of guilty of both charges. The court ordered a presentence investigation (PSI) report and set sentencing for August 27, 1993.
On August 25, 1993, the court received the PSI report which included a "Kansas Criminal History Worksheet." A narrative of Hankins' criminal history set out in the PSI report stated he had been convicted of one count of residential burglary in case No. 86-CR-101 and one count of residential burglary in case No. 87-CR-1814. The criminal history worksheet, however, indicated Hankins' criminal history included no person felony convictions, four adult nonperson felony convictions, and four juvenile nonperson felony convictions. According to the worksheet, the adult nonperson felony convictions occurred in two cases--86-CR-101, two counts of burglary and one count of theft; and 87-CR-1814, one count of burglary. The appellant was assigned a final criminal history category of E, which equates to three or more nonperson felonies.
At sentencing, defense counsel moved to have Hankins sentenced under the KSGA, which was denied by the court. The State orally moved to amend the criminal history worksheet of the PSI report. Defense counsel objected, noting he had not been served with the PSI report and had only reviewed it in the judge's chambers. Defense counsel also objected because he had not received written notice of the fact the State wished to challenge the criminal history.
The district court ruled that since it was sentencing Hankins under the old law, it was not prejudicial to him if the court allowed the State to change the prior criminal history. Therefore, based on the certified copies of conviction the State provided, the court allowed the PSI criminal history to be orally amended. After the amendment of the PSI report to include two prior person felonies, appellant's criminal history became a category B on the drug grid. The district court found if this case had arisen under the KSGA, Hankins' offense would have been a Severity Level IV, which, combined with his Criminal History Category of B, would give Hankins a sentence of 32 to 36 months.
Prior to trial, the State had filed a motion to impose the Habitual Criminal Act against Hankins. It stated Hankins had been convicted of two counts of residential burglary, two counts of felony theft, two counts of auto burglary, and one count of misdemeanor theft. The State produced certified copies of the complaints and journal entries of judgment for these convictions. The State also advised the court of Hankins' extensive juvenile record and listed those adjudications for the court. Defense counsel argued Hankins' prior crimes were not similar or comparable to Hankins' current offense and it would be inappropriate to impose the Habitual Criminal Act based upon these offenses. The court found Hankins' prior offenses to be comparable felony offenses and imposed the Habitual Criminal Act.
The district court indicated it had no discretion about whether it could impose the Habitual Criminal Act and stated it was imposing the minimum possible sentence because a minimum sentence was appropriate in this case. The court sentenced Hankins to not less than 5 nor more than 15 years in prison. The State advised the court that under the Habitual Criminal Act the maximum term must be at least 20 years. The court corrected itself and sentenced Hankins to 5 to 20 years in prison.
Hankins timely appeals.
Hankins argues the district court erred in enhancing his sentence under the Habitual Criminal Act, K.S.A.1992 Supp. 21-4504(c)(1), (2) because his current offense is not comparable to his prior felonies. His current offense is an article 41, chapter 65 crime, while his prior adult convictions are article 37, chapter 21 crimes.
Interpretation of a statute is a question of law. State v. Donlay, 253 Kan. 132, Syl. p 1, 853 P.2d 680 (1993). The district court's finding that K.S.A.1992 Supp. 21-4504...
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