State v. Murray

• Decision Date: 17 May 1996
• Docket Number: 73015,Nos. 73014,s. 73014
• Citation: 916 P.2d 712,22 Kan.App.2d 340
• Parties: STATE of Kansas, Appellee, v. Darrell L. MURRAY, Appellant.
• Court: Kansas Court of Appeals

Page 712

916 P.2d 712

22 Kan.App.2d 340

STATE of Kansas, Appellee, v. Darrell L. MURRAY, Appellant.

Nos. 73014, 73015.

Court of Appeals of Kansas.

May 17, 1996.

Syllabus by the Court

1. The provisions of the Kansas Sentencing Guidelines Act allow for the inclusion of expunged juvenile adjudications in determining a defendant's criminal history.

2. A plea of guilty or nolo contendere is valid only when freely, knowingly, and voluntarily made.

3. In considering the entry of a plea of guilty or nolo contendere, defense counsel has an obligation to advise the defendant as to the range of permissible penalties and to discuss the possible choices available to the defendant.

4. A prosecutor may not induce a plea of guilty or nolo contendere by withholding from defense counsel otherwise unavailable information that is relevant to the consequences of the plea.

5. In order to allow a criminal defense attorney to fulfill his or her obligations to a defendant concerning the consequences of pleading guilty, the defense attorney must have, and thus the prosecutor must share with the defense attorney, knowledge of any expunged juvenile adjudications that will be used in the defendant's criminal history.

Benjamin C. Wood, Special Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant.

Joe E. Lee, Assistant County Attorney, Rodney H. Symmonds, County Attorney, and Carla J. Stovall, Attorney General, for appellee.

Before GERNON, P.J., GREEN, J., and PHILIP L. SIEVE, District Judge, Assigned.

PHILIP L. SIEVE, District Judge, Assigned.

Darrell L. Murray appeals the district court's inclusion of three expunged nonperson felony juvenile adjudications in his criminal history to compute his sentence under the Kansas Sentencing Guidelines Act (KSGA). He also appeals the district court's refusal to allow him to withdraw his guilty plea.

On August 24, 1994, Murray pled guilty to sale of cocaine within 1,000 feet of a school and possession of marijuana with intent to sell. Before entering this plea, Murray read a statement to the court explaining that his lawyer had informed him that the guilty plea could subject him to 83 months' imprisonment if his criminal history included three or more person felonies or 51 months' imprisonment if he had one misdemeanor or no criminal record.

At the same hearing but in a separate case with separate counsel, Murray also pled guilty to possession of cocaine with intent to sell. Murray read another statement to the court explaining that his lawyer had informed him that this guilty plea could subject him to 51 months' imprisonment if his criminal history included three or more person felonies or 16 months' imprisonment if he had one misdemeanor or no criminal record. The district court informed Murray that because he committed the latter offense while he was on an appearance bond for the former offenses, the sentences for the two cases would run consecutively. At sentencing, the State contended that Murray's criminal history was "E" because of three nonperson felony juvenile adjudications. Murray objected to such a computation because those juvenile adjudications had been expunged. The State conceded that the adjudications had been expunged but argued that the adjudications nonetheless counted as prior felony convictions under the sentencing guidelines.

Murray informed the district court that he had not expected the expunged adjudications to beincluded in his criminal history and, if the district court were to include those adjudications in this criminal history, he wanted to withdraw his guilty plea. Murray's attorney explained that when he advised Murray to plead guilty, he relied, in part, on statements by Murray's other attorney that Murray had no criminal record. Additionally, the bond investigation had not revealed the expunged juvenile adjudications, and Murray's attorney lacked access to the KBI file that would have revealed such records. The district court refused to allow Murray to withdraw his plea, overruled Murray's objection to the State's criminal history computation, and included the three expunged nonperson felony juvenile adjudications in Murray's criminal history.

The district court sentenced Murray to 59 months' imprisonment for selling cocaine within 1,000 feet of a school, to be served concurrent with 30 months' imprisonment for possession of marijuana with intent to sell. The district court sentenced Murray to 30 months' imprisonment for possession of cocaine with the intent to sell, to be served consecutive to the other two sentences, for a controlling term of 89 months. Murray appeals.

Murray argues that the district court erred in considering the three nonperson felony juvenile adjudications in computing his criminal history because adjudications under the juvenile code do not import criminal actions. Specifically, Murray argues that the juvenile code and the KSGA conflict on this issue and, because statutes must be construed in favor of a criminal defendant, this court should hold that the juvenile code prohibits the use of juvenile adjudications in computing a criminal history under the KSGA. This is an issue of statutory interpretation, which is a question of law. An appellate court's review of a question of law is unlimited. Foulk v. Colonial Terrace, 20 Kan.App.2d 277, 283, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).

In State v. LaMunyon, 21 Kan.App.2d 281, 898 P.2d 1182 (1995), aff'd 259 Kan. 54, 911 P.2d 151 (1996), the court addressed this issue and held that because the legislature specifically provided that juvenile adjudications were to be considered in determining criminal history under the KSGA, it logically follows that the legislature intended the KSGA to be the controlling statute. 21 Kan.App.2d at 283, 898 P.2d 1182. Based on LaMunyon, we find that juvenile adjudications can be included in one's criminal history under the KSGA.

Murray argues that the district court's use of juvenile adjudications in his criminal history computation violated due process. The LaMunyon court also rejected this argument, reasoning that because depriving a juvenile of liberty under the juvenile code does not violate due process, the use of juvenile adjudications to enhance one's criminal history under the KSGA does not violate due process. LaMunyon, 21 Kan.App.2d at 284-85, 898 P.2d 1182.

Murray argues that the district court's use of juvenile adjudications in his criminal history violated the constitutional prohibition against ex post facto laws. LaMunyon was a retroactive conversion case, and the court reasoned, in part, that the refusal to convert the defendant's sentence merely resulted in the defendant serving his original sentence; because the KSGA did not disadvantage the defendant but only denied him the benefit of conversion, the KSGA did not operate ex post facto. 21 Kan.App.2d at 286, 898 P.2d 1182. The LaMunyon court also relied on U.S. v. Bucaro, 898 F.2d 368, 371 (3d Cir.1990), where the court held that the federal sentencing guidelines did not operate ex post facto by including juvenile adjudications in the defendant's criminal history because the defendant was not being punished for his juvenile conduct and the guidelines were in effect when he committed the crimes for which the sentence was imposed. Here, as in Bucaro, the KSGA did not operate ex post facto regarding Murray's crimes.

At trial, the issue was not whether juvenile adjudications generally could be included in one's criminal history but, more specifically, whether expunged juvenile adjudications could be included. On appeal, Murray curiously elected to brief the former more general issue, using the same arguments that the LaMunyon court rejected. Because the trial court addressed the latter more specific issue concerning expunged juvenile adjudications, this court can address this issue on appeal. See R.D. Andersen Constr. Co. v. Kansas Dept. of Human Resources, 7 Kan.App.2d 453, 456, 643 P.2d 1142, rev. denied 231 Kan. 801 (1982).

Under the KSGA, criminal history is based on several types of prior convictions, including nonperson felony juvenile adjudications. K.S.A. 21-4710(a). K.S.A. 21-4710(d)(2) states that "[a]ll prior adult felony convictions, including expungements, will be considered and scored." A common rule of statutory construction is that the mention or inclusion of one thing implies the exclusion of another. This rule should be applied to discern legislative intent and should not be employed if it would override or defeat a contrary legislative intention. State v. Luginbill, 223 Kan. 15, 20, 574 P.2d 140 (1977). Under this rule, the inclusion of expunged adult convictions in criminal history computations in K.S.A. 21- 4710(d)(2) implies the exclusion of expunged juvenile adjudications unless the other provisions of the KSGA show a contrary legislative intent.

K.S.A. 21-4710(d)(4) provides that nonperson misdemeanor juvenile adjudications and some nonperson felony juvenile adjudications will decay and will not be included in the criminal history computation if the crime of conviction was committed after the offender reached the age of 25. Juvenile adjudications which would constitute more severe nonperson felonies and person felonies will not decay. K.S.A. 21-4710(d)(5), (6). The KSGA is silent as to whether expunged juvenile adjudications are included in one's criminal history. K.S.A. 21-4710(d)(11) provides: "Except as otherwise provided, all other prior convictions will be considered and scored."

In State v. Flummerfelt, 235 Kan. 609, 612, 684 P.2d 363 (1984), the court provided instruction for construing criminal statutes:

"In construing statutes ... [e]ffect must be given, if possible, to the entire act and every part thereof. To this end it is the duty of the court, so far as practicable, to reconcile the different provisions so as to make them consistent, harmonious and sensible. [Citations omitted.] In addition,...