State v. Jennings

• Decision Date: 05 December 1986
• Docket Number: No. 59067,59067
• Citation: State v. Jennings, 729 P.2d 454, 240 Kan. 377 (Kan. 1986)
• Parties: STATE of Kansas, Appellee, v. James L. JENNINGS, Appellant.
• Court: Kansas Supreme Court

Page 454

729 P.2d 454

240 Kan. 377

STATE of Kansas, Appellee, v.James L. JENNINGS, Appellant.

No. 59067.

Supreme Court of Kansas.

Dec. 5, 1986.

Syllabus by the Court

1.Under K.S.A.1985 Supp. 21-4603(3), a defendant has no right to a hearing on a motion to modify sentence or to be present at consideration of that motion.

2.A sentence imposed by a trial court will not be disturbed on the ground 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, or corrupt motive.

3. K.S.A. 21-4601 simply expresses the current objectives of the correctional process and, as such, need not be expressly considered by the sentencing judge.

Benjamin C. Wood, Chief Appellate Defender, argued the cause and was on brief, for appellant.

C. William Ossmann, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Gene M. Olander, Dist. Atty., were with him on brief, for appellee.

HERD, Justice:

This is a criminal action wherein the appellant, James "Pookie" Jennings, pled nolo contendere and was found guilty of one count of second-degree murder.The crime arose out of these facts:

On the evening of June 14, 1985, Jennings and another man, Richard G. Nichols, had an argument in the parking lot of an east Topeka liquor store.Jennings threateningly told Nichols he was going to kill him and left the parking lot, only to return fifteen minutes later with a sawed-off shotgun.Thereafter, upon the exchange of angry words, Jennings shot Nichols in the head.After the shooting, Jennings fled.

Jennings was charged with first-degree murder, but pursuant to the terms of a plea agreement, he pled no contest to second-degree murder on July 12, 1985.

On August 19, 1985, the appellant appeared before the district judge for sentencing.After a hearing, the judge found the mandatory sentencing provisions of K.S.A. 21-4618 applicable, since a firearm was used in the commission of the crime.The judge imposed a sentence of 15 years to life imprisonment--the maximum permissible under K.S.A.1985 Supp. 21-4501(b).

On November 18, 1985, the appellant filed a motion to modify his sentence pursuant to K.S.A.1985 Supp. 21-4603(3).Appellant further moved the court to return him to the Shawnee County jail for the purpose of a sentence modification hearing.In a memorandum decision dated January 7, 1986, this motion was denied.

For his first issue, appellant argues his due process rights were violated when the trial court denied his motion to modify sentence without holding a hearing.The appellant suggests that when a defendantpetitions the court to modify his sentencehe places his liberty at stake and accordingly, is entitled to notice and an opportunity to be heard.

K.S.A.1985 Supp. 21-4603(3) authorizes the court to modify a sentence within the statutory limits any time within 120 days after a sentence is imposed; no hearing procedure is discussed.K.S.A.1985 Supp. 21-4603(4) allows reduction of sentence below the statutory minimum upon the recommendation of the secretary of corrections; this subsection specifically provides for a hearing and notice to interested parties.K.S.A. 22-3504 specifically provides for a hearing and that a defendant be personally present for correction of a sentence.These distinctions are significant.The legislature did not provide for a hearing on sentence modification, 21-4603(3).

K.S.A.1985 Supp. 22-3405(1) sets out the stages in a felony proceeding where the defendant's presence is required and provides as follows:

"The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law."(Emphasis added.)

Unless a motion for modification is considered part of the "imposition of sentence,"the appellant had no right to appear in support of his motion.We resolved this issue in State v. Bryant, 227 Kan. 385, 607 P.2d 66(1980), where we held that a defendant's right to be present does not extend to post-conviction motions.In so holding, we reasoned that the trial ends when a verdict has been rendered, any right which the accused may have to be present at proceedings following indictment continues only during the pendency of the trial, and a defendant, once convicted, cannot expect to be present at post-conviction motions.See alsoState v. Myers, 10 Kan.App.2d 266, 271, 697 P.2d 879(1985), where the Court of Appeals noted that a defendant has no right to be present at a ruling on a motion to modify.We agree and hold that a defendant has no right to a hearing on a motion to modify sentence or to be present at consideration of that motion.

This holding is consistent with federal law.Federal Rule of Criminal Procedure 35(b) is nearly identical to K.S.A.1985 Supp. 21-4603(3).Under that rule, it is discretionary with the trial judge whether to hear testimony or arguments on the motion.3 Wright, Federal Practice and Procedure: Criminal2d § 586 p. 405.See alsoUnited States v. Donohoe, 458 F.2d 237(10th Cir.1972), where it was held a defendant has no right to a hearing in open court on a motion to modify sentence and has no constitutional right to be personally present or to be represented by counsel at consideration of motion to modify sentence.

Appellant next alleges the district court's summary dismissal of his motion to modify violated his due process rights.Jennings' arguments on this issue are essentially the same as those made in support of his first issue.Specifically, the appellant argues the trial court's failure to hold a hearing and its summary dismissal of his motion to modify resulted in a denial of his right to appeal.Appellant reasons that without a hearing or memorandum detailing the reasons for denial of his motion, he has no record from which to appeal.This argument is without merit.

When the district court ruled on the motion to modify, it had before it a presentence report, an SRDC report, and the transcript of the sentencing hearing.It is obvious the court based its decision on this information.Further, where there is no right to a hearing in open court and the defendant has no...