State v. Kinder
Citation | 408 P.3d 114 |
Decision Date | 05 January 2018 |
Docket Number | No. 112,844,112,844 |
Parties | STATE of Kansas, Appellee, v. James KINDER, Appellant. |
Court | United States State Supreme Court of Kansas |
Samuel Schirer, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Daniel G. Obermeier, assistant district attorney, argued the cause, and Jacob G. Fishman, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
The district court sentenced James Kinder to nine months' imprisonment. While it awarded Kinder credit for his nearly 12 months of pretrial confinement under K.S.A. 2016 Supp. 21-6615, it also imposed 18 months' probation. Because Kinder's credited jail time actually exceeded the sentence of confinement imposed for his crime, he argued he already served his sentence and the probation therefore was improper.
The Court of Appeals did not address whether sentencing Kinder to probation was in error and in violation of his Double Jeopardy rights, holding his sentence was a presumptive one under the Kansas Sentencing Guidelines Act (KSGA) and thus beyond judicial review. State v. Kinder , No. 112844, 2015 WL 8590406 (Kan. App. 2015) (unpublished opinion) (citing K.S.A. 2016 Supp. 21-6820 [c][1] ).
We conclude Kinder is not actually challenging a presumptive sentence so review is appropriate. We further conclude probation cannot be imposed after the full sentence of confinement has been served. Accordingly, we reverse the lower courts.
The facts material to our analysis are straightforward. In Kinder's petition for our review of the Court of Appeals' decision under K.S.A. 20-3018(b), he agrees with the panel's recitation as follows:
Issue: The district court erred in imposing probation when the underlying sentence of confinement already had been served.
The panel held that Kinder's sentence was within the presumptive range for his crime of conviction. K.S.A. 2016 Supp. 21-6803(q) ( ). After all, the district court appeared to follow the KSGA. For a defendant who committed a severity level 8 nondrug offense and possessed a category of "I" criminal history, the corresponding grid block prescribed a sentencing range of 7 to 9 months. See K.S.A. 2016 Supp. 21-6804. Moreover, under these circumstances, the KSGA sentence was presumptive probation. K.S.A. 2016 Supp. 21-6804. Because presumptive sentences are not subject to appellate review, the panel held it had no jurisdiction. See K.S.A. 2016 Supp. 21-6820(c)(1) ; State v. Huerta , 291 Kan. 831, 839–40, 247 P.3d 1043 (2011) ( ).
As discussed below, however, the question on appeal is not whether Kinder's sentence is presumptive and thus nonreviewable. Rather, the question is more properly characterized as whether the district court was authorized to retain control of Kinder via probation after he had fully served his sentence, i.e., already spent more time in "credited" confinement than the KSGA maximum of nine months. Cf. State v. Warren , 297 Kan. 881, 882–85, 304 P.3d 1288 (2013) ( ).
Standard of review
Our analysis requires review and interpretation of the KSGA. Interpretation of that statutory scheme is a question of law subject to unlimited review. State v. Eddy , 299 Kan. 29, 32, 321 P.3d 12 (2014).
The State points to several parts of the KSGA to argue that probation can exist even after a defendant's full term of incarceration has been served. So it argues by analogy that Kinder could be ordered on probation even after completion of his maximum term of incarceration.
As primary support, the State relies upon K.S.A. 2016 Supp. 22-3716 which concerns procedures and court sanctions after one's arrest for violating conditions of probation. The State contrasts the confinement limits expressly imposed by subsection (c)(7)—any "violation sanction imposed pursuant to subsection (c)(1)(B), (c)(1)(C) or (c)(1)(D) shall not be longer than the amount of time remaining on the offender's underlying prison sentence"—with the lack of express confinement limits imposed by (c)(11). The latter subsection merely provides that confinement for such probation violations "is separate and distinct from the violation sanctions provided in subsection (c)(1)(B), (c)(1)(C) or (c)(1)(D) and (c)(1)(E)."
The State essentially argues that (c)(7) demonstrates the Legislature knew how to expressly limit confinement periods for probation violations to the amount remaining on the underlying prison sentence. It reasons that since (c)(11) does not express such limits, that subsection reflects a legislative intention to not always prohibit extending confinement for probation violations to "longer than the amount of time remaining on the offender's underlying prison sentence." Under the State's rationale, the court therefore can make Kinder subject to probation for "longer than the amount of time remaining" on his underlying prison sentence of nine months—although that time has already been served.
But other provisions of the KSGA suggest otherwise. As we stated in State v. Bee , 288 Kan. 733, 737–38, 207 P.3d 244 (2009) :
For example, K.S.A. 2016 Supp. 21-6603(g) provides the definition of the term "probation," identifying it as:
"a procedure under which a defendant, convicted of a crime, is released by the court after imposition of sentence, without imprisonment except as provided in felony cases , subject to conditions imposed by the court and subject to the supervision of the probation service of the court or community corrections." (Emphasis added.)
The balance of subsection (g) then elaborates on the definition's limited exception, i.e., "imprisonment ... as provided in felony cases":
"In felony cases , the court may include confinement in a county jail not to exceed 60 days, which need not be served consecutively, as a condition of an original probation sentence and up to 60 days in a county jail upon each revocation of the...
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State v. Roat
...moot but that raise issues that are capable of repetition and present concerns of public importance. See, e.g., State v. Kinder , 307 Kan. 237, 244, 408 P.3d 114 (2018). If mootness were jurisdictional, we could not have such court-created exceptions. See State v. Montgomery, 295 Kan. 837, ......
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State v. Gilliland
...commonly apply an exception when an issue " ‘is capable of repetition and raises concerns of public importance.’ " State v. Kinder , 307 Kan. 237, 244, 408 P.3d 114 (2018). Gilliland contends that he could not have filed an interlocutory appeal from the bond condition because he had to awai......
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