State v. Martin

• Decision Date: 26 January 2001
• Docket Number: No. 84,621.,84,621.
• Citation: State v. Martin, 17 P.3d 344, 270 Kan. 603 (Kan. 2001)
• Parties: STATE OF KANSAS, Appellee, v. JAMES A. MARTIN, Appellant.
• Court: Kansas Supreme Court

270 Kan. 603

17 P.3d 344

STATE OF KANSAS, Appellee, v.JAMES A. MARTIN, Appellant.

No. 84,621.

Supreme Court of Kansas.

Opinion filed January 26, 2001.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was on the briefs for appellant.

Debra S. Peterson, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla J. Stovall,attorney general, were with her on the brief for appellee.

Timothy G. Madden, special assistant attorney general, argued the cause and was on the briefs for intervenorKansas Department of Corrections.

The opinion of the court was delivered by

LOCKETT, J.:

This is a direct appeal of the district court's finding that K.S.A. 1998 Supp. 21-4603d(e) is unconstitutional and its order returning the defendant to the custody of the Department of Corrections(DOC).Three issues are raised: (1) Does K.S.A. 1998 Supp. 21-4603d(e) violate the separation of powers doctrine; (2) did the district court have jurisdiction to determine the constitutionality of K.S.A. 1998 Supp. 21-4603d(e); and (3) if the statute is determined to be unconstitutional, must the defendant remain in the custody of the DOC?The second issue is dispositive of the case, therefore, the remaining issues will not be addressed in this opinion.

On April 9, 1999, James Martin pled guilty to possession of marijuana with intent to sell and no tax stamp.Prior to sentencing, Martin applied for and received preliminary acceptance to the Labette Correctional Conservation Camp (Labette).A follow-up evaluation stated that Martin was actively participating in a relapse prevention program.On May 11, 1999, Martin appeared for sentencing.The district judge noted that Martin's primary offense was a severity level 3 on the drug sentencing grid.Martin's criminal history score was H.A classification of 3-H on the drug sentencing grid was a border box classification, authorizing the court to impose a nonprison sentence if (1) an appropriate treatment program exists which is likely to be more effective than the presumptive prison term in reducing the risk of recidivism; (2) the recommended treatment program is available and the offender can be admitted into the program within a reasonable period of time; or (3) the nonprison sanction will serve community safety interests by promoting offender reformation.SeeK.S.A. 1997 Supp. 21-4705(d).

Martin's attorney advised the judge that Martin had been accepted into the Labette program and Martin had taken steps toward reformation.Martin's counsel pointed out that Martin had been administered a drug and alcohol evaluation and had completed his initial treatment.Martin's counsel argued that Martin and society would be better served by Martin's placement in Labette pursuant to K.S.A. 21-4603d(e) as opposed to incarceration.

Due to the amount of marijuana involved (approximately 37 pounds), the district judge declined to sentence Martin to placement at Labette.The judge ordered Martin to serve a 26-month prison term.

After Martin was in the custody of the Kansas Department of Corrections(DOC), the DOC placed Martin in the Labette program pursuant to K.S.A. 21-4603d(e).In November 1999, the DOC sent a letter to the district judge stating that Martin would soon graduate from Labette and, in compliance with K.S.A. 21-4603d(e), the court was to order Martin released to community corrections.

On November 15, 1999, the district judge by letter informed the Sedgwick County District Attorney, the Kansas Attorney General's office, and Martin's attorney that a hearing would be held on December 8, 1999, to address the constitutional validity of K.S.A. 21-4603d(e) under the separation of powers doctrine.Martin's attorney filed a motion opposing the hearing, alleging the court had no jurisdiction to challenge the constitutionality of the statute and asserting that even if the court had jurisdiction to challenge the statute, the time for its challenge had expired.

On December 8, 1999, the matter was heard.The judge noted that the court's opportunity to consider the issue arose when it received the October 1999 letter from the DOC addressing Martin's release.After arguments, the judge found that the portion of K.S.A. 1998 Supp. 21-4603d(e) which required the court to assign an inmate to community corrections following receipt of a letter from the Secretary of Corrections indicating an inmate had successfully completed a conservation camp was an unconstitutional violation of the separation of powers.The judge stated that the Secretary of Corrections cannot make a binding recommendation on the court.SeeState v. Reed,248 Kan. 792, 811 P.2d 1163(1991).The judge observed that if the DOC placed an inmate on parole, there would be no separation of powers problem.The judge concluded that the DOC cannot require the district court to place an inmate on probation.The judge declared K.S.A. 1998 Supp. 21-4603d(e) unconstitutional and refused to release Martin to community corrections.Martin appealed.Our jurisdiction is pursuant to K.S.A. 22-3602.

Constitutionality of K.S.A. 1998 Supp. 21-4603d(e)

The judge had jurisdiction to determine the constitutionality of K.S.A. 1998 Supp. 21-4603d(e) if that statute applied to Martin.It is important to note that Martin committed his crime in March 1998.Criminal statutes and penalties in effect at the time of the criminal act are controlling.State v. Sisk,266 Kan. 41, 44, 966 P.2d 671(1998).Therefore, K.S.A. 1997 Supp. 21-4603d applies to this case.In 1998, the legislature made minor changes to K.S.A. 1997 Supp. 21-4603d(e) which would have no effect on the outcome of this case.We note the 1998legislative amendments did make substantive changes to other portions of the statute.SeeL. 1998, ch. 186, § 2..

K.S.A. 1997 Supp. 21-4603d(e) provides, in part:

"The secretary of corrections is authorized to make direct placement to the Labette correctional conservation camp of an inmate sentenced to the secretary's custody if the inmate: (1) Has been sentenced to the secretary for a probation revocation or as a departure from the presumptive nonimprisonment grid blockof either sentencing grid; and otherwise meets admission criteria of the camp.If the inmate successfully completes the 180-day conservation camp program, the secretary of corrections shall report such completion to the sentencing court and the county or district attorney.The inmate shall then be assigned by the court to 180 days of follow-up supervision conducted by the appropriate community corrections services program."(Emphasis added.)

K.S.A. 1997 Supp. 21-4705(d) provides that if an offense is classified in a border box, the sentence is presumed imprisonment, but the court may impose an optional nonprison sentence upon making the certain findings on the record.Subsection (d) provides that any decision made by the court to impose an optional nonprison sentence is not considered a departure or subject to appeal.The statute allows the district judge discretion to impose imprisonment or nonimprisonment to a defendant whose sentence falls within a border box.Under the statute, a sentence of imprisonment or probation within the respective ranges is not a departure.Cf.State v. Bost,21 Kan. App.2d 560, 571, 903 P.2d 160(1995) (sentence within range for border box of nondrug crime not a departure, applying K.S.A. 21-4704[a] and [f].

For Martin's primary crime of conviction, he was sentenced pursuant to the sentencing range in grid box 3-H of the drug sentencing grid, a border box, which provided the district court discretion to order imprisonment or nonimprisonment.Under the statutes in effect at the time of the imposition of Martin's sentence, the district court's imposition of imprisonment was not a departure.Therefore, Martin does not fall within the purview of K.S.A. 1998 Supp. 21-4603d(e).When the district court found K.S.A. 1998 Supp. 21-4603d(e) an unconstitutional violation of the separation of powers, the court erroneously assumed that Martin's sentence fell within the purview of K.S.A. 1998 Supp. 21-4603d(e).Neither K.S.A. 1997 Supp. 21-4603d(e) nor K.S.A. 1998 Supp. 21-4603d(e) were applicable to Martin.

In 1999, the legislature amended K.S.A. 1998 Supp. 21-4603d(e) to include persons such as Martin sentenced within border boxes in the class of individuals the Secretary of Corrections could directly place in Labette and after successful completion of that program transfer to the district court for placement in community corrections.SeeL. 1999, ch. 164, § 13;K.S.A. 1999 Supp. 21-4603d(e).The DOC now asserts that statute is procedural and, therefore, retroactive and that Martin is subject to placement in community corrections.

RETROACTIVITY OFK.S.A. 1999 SUPP. 21-4603d(e)

The differences among the 1997, 1998, and the 1999 versions of K.S.A. 21-4603d are important to the issue.The record and the briefs indicate that the parties were not clear as to which version of the statute was applicable to Martin.The district court's order declaring K.S.A. 21-4603d(e) unconstitutional cites the 1998 version of the statute.

The DOC's correspondence with the district court refers to K.S.A. 21-4603d(e), without reference to the applicable statutory supplement, as authority for its request for an order placing Martin in community corrections.In the DOC's brief, the difference between the 1998 and 1999 versions of the statute is not acknowledged; however, the DOC's brief quotes the 1999 version as authority for its decision to assign Martin to Labette.In its reply brief, the DOC acknowledges the difference between the two statutes and admits that an argument regarding the applicability of the 1999statute to Martin's case was not made to the district court.The DOC then argues to this court that the 1999statute is applicable because that statute must be retroactively applied.

Martin's appellate brief...