State v. Moon, 64405

• Decision Date: 09 November 1990
• Docket Number: No. 64405,64405
• Citation: 15 Kan.App.2d 4,801 P.2d 59
• Parties: STATE of Kansas, Appellee, v. Virgil MOON III, Appellant.
• Court: Kansas Court of Appeals

Page 59

801 P.2d 59

15 Kan.App.2d 4

STATE of Kansas, Appellee, v. Virgil MOON III, Appellant.

No. 64405.

Court of Appeals of Kansas.

Nov. 9, 1990.

Review Denied March 13, 1991.

Syllabus by the Court

1. The 1989 amendment to K.S.A. 21-4603(3)(a) is similar in purpose to the legislatively created presumption of probation in K.S.A.1989 Supp. 21-4606a and, as from the denial of presumptive probation, a direct appeal may also be taken from the court's rejection of a State Reception and Diagnostic Center recommendation for sentence modification under 21-4603(3)(a).

2. As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes punishment for those acts; whereas procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished.

3. The issue of whether a statute is substantive or procedural is critical for purposes of determining the statute's operative effect. As a general rule, a statute operates prospectively unless its language clearly indicates a contrary legislative intent. The general rule is modified and the statute is given retroactive effect where the statutory change is merely procedural or remedial in nature.

4. The ex post facto prohibition forbids the enactment of any law which punishes an act which was not punishable at the time it was committed, imposes additional punishment to that then prescribed, aggravates the crime, or alters the legal rules of evidence. For a criminal law to be ex post facto, the law must be retrospective; that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.

5. K.S.A.1989 Supp. 21-4603(3)(a) is not an ex post facto law. It does not effect a change in the substantive criminal law of Kansas because it neither declares certain acts to be crimes, nor prescribes a punishment. The statute provides that "any time within 120 days after a sentence is imposed ... the court may modify such sentence ... and shall modify such sentence if recommended by the state reception and diagnostic center." The statute comes into play only after a defendant has been charged, convicted, and sentenced. It acts to regulate the steps by which a defendant convicted of a crime is punished and, therefore, by definition, is a procedural criminal law.

6. K.S.A.1989 Supp. 21-4603(3)(a) requires that the trial court follow the recommendation of the State Reception and Diagnostic Center (SRDC) unless the court makes the two findings set forth in the statute. It naturally follows that a recommendation by the SRDC must first be made. Absent an unequivocal recommendation for modification by the SRDC, the court has discretion in modifying sentence and commits no error in refusing modification of sentence absent an abuse of that discretion.

Thomas H. Johnson, Asst. Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant.

Thomas J. Robinson, Asst. Dist. Atty., Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before BRISCOE, C.J., and LARSON and LEWIS, JJ.

BRISCOE, Chief Judge:

Defendant Virgil Moon III appeals the trial court's denial of his motions to modify his sentence, alleging abuse of discretion.

On October 6, 1987, Moon was charged with nine counts of felony theft (class E felonies) in connection with the theft of several pieces of equipment from his former employer. K.S.A. 21-3701(a). On February 8, 1988, Moon pleaded guilty to all charges and was sentenced to one to five years' imprisonment on the first seven counts, with imposition of sentence on the last two counts suspended. The minimum sentence for a class E felony is one year and the maximum is not less than two nor more than five years. K.S.A. 21-4501(e). The trial court then granted Moon's application for probation for a period of four years, subject to certain conditions including that he undergo alcohol and drug treatment and that he not violate the law in any manner.

On September 2, 1988, Moon was charged with misdemeanor possession of marijuana (K.S.A.1989 Supp. 65-4127b). He was thereafter charged with violation of the terms of his probation imposed in the prior theft case and, after a hearing, his probation was revoked on May 4, 1989. On the same date, the court reinstated its previous sentence and set aside suspension of imposition of sentence on the last two counts. Moon filed a motion to modify his sentence in the theft case on May 8, 1989. On June 23, 1989, Moon pleaded guilty to marijuana possession as charged and was sentenced to 30 days' imprisonment, to be served consecutive to the sentence on the theft convictions. On August 25, 1989, Moon also filed a motion to modify his sentence in the possession case. The two cases were consolidated in the trial court and, on September 1, 1989, the court denied both motions to modify.

We must first determine whether this court has jurisdiction to consider this appeal. The State contends the trial court's decision is not subject to appellate review and cites State v. VanReed, 245 Kan. 213, 777 P.2d 794 (1989). In VanReed, the court restated the general rule that a decision denying probation following a guilty or nolo contendere plea is not subject to appellate review, but recognized an exception when appellate review is sought for a trial court's denial of a motion for a presumptive sentence of probation under K.S.A.1989 Supp. 21-4606a. The State argues 21-4606a does not apply to Moon's sentencing for the nine felony counts because he had prior juvenile adjudications for theft and child abuse. The State also argues 21-4606a does not apply to the possession of marijuana charge because it was a misdemeanor.

The State misconstrues Moon's appeal. He is not contending the trial court abused its discretion in failing to set forth factors sufficient to overcome the presumption of probation under 21-4606a. Moon is contending the court abused its discretion when it denied the motion to modify his sentence. Specifically, Moon argues the court abused its discretion by failing to follow the State Reception and Diagnostic Center's (SRDC) recommendation that he be placed on probation as required by K.S.A.1989 Supp. 21-4603(3)(a), which provides:

"Except when an appeal is taken and determined adversely to the defendant as provided in subsection (b) of this subsection (3), at any time within 120 days after a sentence is imposed, after probation or assignment to a community correctional services program has been revoked, the court may modify such sentence, revocation of probation or assignment to a community correctional services program by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits and shall modify such sentence if recommended by the state reception and diagnostic center unless the court finds that the safety of the public will be jeopardized and that the welfare of the inmate will not be served by such modification." (Emphasis added.)

This amendment to 21-4603(3), which became effective July 1, 1989, is similar in purpose to the legislatively created presumption of probation in 21-4606a and, like the denial of presumptive probation, a direct appeal may also be taken from the court's rejection of an SRDC recommendation for sentence modification under 21-4603(3)(a). Accord VanReed, 245 Kan. at 215-17, 777 P.2d 794; State v. Harrold, 239 Kan. 645, 649, 722 P.2d 563 (1986).

The interpretation and application of K.S.A.1989 Supp. 21-4603(3)(a) has been a recurring appellate issue in recent months. The threshold question has been whether the 1989 amendment to the statute is substantive or procedural in nature and, consequently, whether the amendment applies prospectively or retroactively. The statute is silent as to whether it is to apply to offenses committed prior to its effective date. As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes punishment for those acts; whereas procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished. State v. Hutchison, 228 Kan. 279, 287, 615 P.2d 138 (1980). The issue of whether a statute is substantive or procedural is critical for purposes of determining the statute's operative effect. As a general rule, a statute operates prospectively unless its language clearly indicates a contrary legislative intent. The general rule is modified and the statute is given retroactive effect where the statutory change is merely procedural or remedial in nature. State v. Nunn, 244 Kan. 207, 216, 768 P.2d 268 (1989). The 1989 legislative amendment to 21-4603(3)(a) is a procedural change for a variety of reasons.

The rule prohibiting retroactive application of a substantive change in a criminal statute has its genesis in the constitutional prohibition against ex post facto laws. Article 1, Section 9, of the United States Constitution provides: "No Bill of Attainder or ex post facto Law shall be passed." In addition, Article 1, Section 10 provides: "No State shall ... pass any ... ex post facto Law." The United States Supreme Court has stated that the ex post facto prohibition forbids the enactment of any law which punishes an act which was not punishable at the time it was committed, imposes additional punishment to that then prescribed, aggravates the crime, or alters the legal rules of evidence. Miller v. Florida, 482 U.S. 423, 429, 107 S.Ct. 2446, 2450, 96 L.Ed.2d 351 (1987). For a criminal law to be ex post facto, the law must be retrospective; that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981); Nunn, 244 Kan. at 219, 768 P.2d 268. The amended sentencing statute at issue, K.S.A.1989 Supp. 21-4603(3)(a), is neither...