State v. Harrold, 58716

• Decision Date: 18 July 1986
• Docket Number: No. 58716,58716
• Citation: 722 P.2d 563,239 Kan. 645
• Parties: STATE of Kansas, Appellee, v. Richard G. HARROLD, Appellant.
• Court: Kansas Supreme Court

Page 563

722 P.2d 563

239 Kan. 645

STATE of Kansas, Appellee, v. Richard G. HARROLD, Appellant.

No. 58716.

Supreme Court of Kansas.

July 18, 1986.

Syllabus by the Court

1. One who pleads guilty or nolo contendere is not precluded by K.S.A. 22-3602 from taking a direct appeal from a sentence imposed.

2. One who wishes to challenge the propriety of his sentence on appeal need not allege that the sentence was the result of partiality, prejudice, or corrupt motive, or that it exceeds the statutory limits, in order to present a justiciable issue. (Overruling State v. Haines, 238 Kan. 478, 712 P.2d 1211 [1986].)

3. When a trial court imposes a sentence which exceeds the minimum, it is the better practice for the trial court to make a detailed statement of the facts and factors considered and relied upon by the court in imposing sentence. (Following State v. Buckner, 223 Kan. 138, 151, 574 P.2d 918 [1977].)

4. In an appeal wherein the defendant challenged the sentences imposed upon him for aggravated incest and aggravated criminal sodomy, the record is reviewed and it is held: The trial judge did not abuse his discretion and the sentences imposed are not excessive.

Steven R. Zinn, Supervising Attorney, of Kansas Appellate Practice Clinic, Lawrence, argued the cause, and Benjamin C. Wood, Chief Appellate Defender, Topeka, and Mark J. Sachse, Legal Intern, Lawrence, were with him on brief, for appellant.

Geary N. Gorup, Asst. Dist. Atty., argued the cause, and Debra Barnett, Asst. Dist. Atty., Clark V. Owens, Dist. Atty., and Robert T. Stephan, Atty. Gen., were on brief, for appellee.

MILLER, Justice.

The defendant, Richard G. Harrold, entered pleas of guilty to charges of aggravated incest, K.S.A.1985 Supp. 21-3603(2)(a), a class D felony, and aggravated criminal sodomy, K.S.A.1985 Supp. 21-3506, a class B felony. His pleas were accepted by the trial court, he was found guilty of those offenses, and he was subsequently sentenced at a separate sentencing hearing after psychological and presentence reports were received by the trial court. He appeals, contending that the trial court abused its discretion in imposing an excessive sentence upon him and by failing to consider the legislatively mandated factors set forth in K.S.A. 21-4601 and 21-4606.

The first issue facing us in this appeal is the matter of jurisdiction. In State v. Haines, 238 Kan. 478, 712 P.2d 1211 (1986), a majority of the court held that one who pleads guilty may not, by direct appeal, challenge his sentence or the denial of probation; his only remedy is by way of a K.S.A. 60-1507 motion. We noted that an appellant who challenges the sentence imposed upon him raises no justiciable issue on appeal in the absence of an allegation that the sentence was the result of partiality, prejudice, or corrupt motive or that it exceeds the statutory limits. We concluded that we had no jurisdiction to entertain Haines's appeal. The sentences imposed on Harrold by the trial court are clearly within the limits fixed by statute, and he does not allege that the sentences were the result of partiality, prejudice, or corrupt motive. Harrold pled guilty. Clearly, under our opinion in Haines, we would not have jurisdiction. We deem it appropriate at this time to review that decision in the light of both earlier and later cases.

K.S.A. 22-3602(a) provides:

"An appeal to the appellate court having jurisdiction of the appeal may be taken by the defendant as a matter of right from any judgment against said defendant in the district court and upon appeal any decision of the district court or intermediate order made in the progress of the case may be reviewed, except that no appeal shall be taken by the defendant from a judgment of conviction before a district judge or associate district judge upon a plea of guilty or nolo contendere, except that jurisdictional or other grounds going to the legality of the proceedings may be raised by the defendant as provided in K.S.A. 60-1507."

K.S.A. 21-3110, a part of the Kansas Criminal Code, defines various words and phrases. Subsection (4) reads:

"(4) 'Conviction' includes a judgment of guilt entered upon a plea of guilty."

K.S.A. 22-2201(2), a section of the Kansas Code of Criminal Procedure, provides:

"(2) Words or phrases not defined in this code but which are defined in the Kansas criminal code shall have the meanings given therein except when a particular context clearly requires different meanings."

Prior to the enactment of K.S.A. 22-3602, quoted above, K.S.A. 1972 Supp. 22-3601 provided in substance that no appeal could be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere. In State v. Dunham, 213 Kan. 469, 517 P.2d 150 (1972), the defendant pled guilty to the offense of taking indecent liberties with a ward. The imposition of sentence was suspended and he was placed on probation. Later, probation was revoked and defendant was sentenced. He filed a motion to set aside his plea of guilty and an additional motion for probation. The trial court denied these motions. Dunham appealed from his judgment of conviction, from the order revoking his probation, and from the overruling of his motion to withdraw his plea. The State filed a motion to dismiss the appeal, contending that the appeal was precluded by K.S.A. 1972 Supp. 22-3601. Under the circumstances of that case, we passed over the State's motion to dismiss and considered the appeal on its merits.

In State v. Buckner, 223 Kan. 138, 574 P.2d 918 (1977), defendant, after a jury trial, contended on appeal that the trial court abused its discretion in imposing a controlling 90-years-to-life sentence upon him. Though he did not allege partiality, prejudice, or corrupt motive, or that the sentences exceeded the statutory maximum, we entertained the appeal, and held that the action of the trial court was arbitrary, unreasonable, and an abuse of discretion. We vacated the sentence and remanded for resentencing.

In State v. Reeves, 232 Kan. 143, 652 P.2d 713 (1982), defendant entered a plea of guilty to one count of aggravated robbery and one count of aggravated burglary. After sentence was imposed, Reeves took a direct appeal, contending that the trial court based its sentencing decision upon improper rationale, failed to follow the dictates of the sentencing statute, and abused its discretion. Without referring to K.S.A. 22-3602 or otherwise discussing jurisdiction, we entertained the appeal.

In State v. Green, 233 Kan. 1007, 666 P.2d 716 (1983), defendant took a direct appeal from the sentence imposed and denial of probation after he had entered a plea of guilty to aggravated robbery. He did not challenge his conviction. He contended instead that the sentence imposed and the denial of probation constituted an abuse of discretion. We considered K.S.A. 22-3602(a) and concluded that the sentencing process follows a judgment of conviction but is separate and apart therefrom, and a majority of the court held that, while Green could not appeal from the judgment of conviction, he could appeal from the sentence imposed and from the denial of probation. We then reviewed the sentence, which was fixed within the permissible limitations of the applicable statute, and concluded that the sentence imposed and the denial of probation did not constitute an abuse of discretion of the sentencing court.

Green was followed by Haines, which overruled Green and held that one who pleads guilty may not take a direct appeal challenging the denial of probation or the sentence imposed. On the same day that the Haines opinion was decided, we handed down our unanimous opinion in State v. Booze, 238 Kan. 551, 712 P.2d 1253 (1986). In the trial court Booze entered a plea of guilty to two separate charges of driving while under the influence of alcohol. He appealed from the sentence imposed, contending that the trial court erred by failing to sentence him as a first offender on the second offense. Without discussing jurisdiction, we considered the merits of the appeal and affirmed.

Next came State v. Johnson, 239 Kan. 124, 716 P.2d 192 (1986). Johnson was convicted of first-degree murder and aggravated robbery upon his pleas of nolo contendere. He took a direct appeal, contending that the disparity between the sentences imposed upon him and the sentences imposed upon his codefendant constituted an abuse of judicial discretion. He made no claim that the sentences imposed were the result of partiality, prejudice, or corrupt motive, or that they exceeded the limitations prescribed by statute. Again, without discussing jurisdiction, we entertained the appeal and unanimously decided it upon its merits.

Finally, on June 13, 1986, we decided State v. Turner, 239 Kan. 360, 721 P.2d 255 (1986). Turner entered a plea of guilty and was later sentenced and placed on probation. His probation was revoked and he was committed to custody. He then filed a motion to withdraw his plea of guilty and after a hearing the trial court denied the motion. Turner appealed. The Court of Appeals considered his motion to set aside his plea of guilty as a proceeding under K.S.A. 60-1507 and assumed jurisdiction of the case. In an unpublished opinion, it reversed. We granted review. Without discussing jurisdiction, we considered the merits of the case and, upon the basis of an expanded record, reversed the Court of Appeals and affirmed the trial court. Also, see State v. Alsup, 239 Kan. 673, 722 P.2d 1100, this day decided.

Under K.S.A. 22-3602(a), do we have jurisdiction of this appeal? We conclude that we do. Harrold is not challenging the judgment of conviction and indeed he may not do so by direct appeal under the statute (except, perhaps, under extremely rare factual circumstances not here involved). He is not appealing from or directly challenging the trial court's denial of probation, and we need not deal with that subject. Harrold challenges only the sentence...