State v. Nguyen

• Decision Date: 20 May 2016
• Docket Number: No. 112,316.,112,316.
• Citation: 304 Kan. 420,372 P.3d 1142
• Parties: STATE of Kansas, Appellee, v. Ebony NGUYEN, Appellant.
• Court: Kansas Supreme Court

304 Kan. 420

372 P.3d 1142

STATE of Kansas, Appellee,

v.Ebony NGUYEN, Appellant.

No. 112,316.

Supreme Court of Kansas.

May 20, 2016.

Joanna Labastida, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Mark Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by NUSS, C.J.:

Ebony R. Nguyen appeals the district court's denial of her motion for a downward durational departure of her life sentence for felony murder. Because the district court had no discretion to depart, we reject Nguyen's arguments and affirm.

Facts and Procedural History

The facts are undisputed. Nguyen unwittingly received counterfeit money from Jordan Turner in exchange for her marijuana. Upon discovering the deception and with the assistance of three others, Nguyen retaliated by luring Turner to a secluded location where he was shot and killed. With kidnapping serving as the underlying felony, Nguyen pled no contest to one count of felony murder under K.S.A. 2012 Supp. 21–5402(a)(2).

Before Nguyen was sentenced, she filed a motion for durational departure from a life sentence and sought a sanction of between 147 to 165 months in prison. At the hearing on the motion the district court stated it had no discretion to depart from the life sentence but, if so, it would not have granted departure:

“Well, I'll say for the record that in my opinion, the Court doesn't have discretion. This is an off-grid offense, and it calls for a life sentence.

“Now, on appeal, if the appellate court were to disagree with that, my position, for purposes of the record, is that I would be unable to find substantial and compelling reasons to depart. Miss Nguyen was the driving force behind the shooting in this case, and under those circumstances, it would be wholly inappropriate for the Court to depart, so if the Court did have the discretion to consider the motion to depart, the Court would deny the motion.”

Accordingly, the court denied Nguyen's motion and imposed a life sentence with parole eligibility after 20 years. See K.S.A. 2015 Supp. 22–3717. Nguyen timely appealed her sentence.

Our jurisdiction is proper under K.S.A. 2015 Supp. 22–3601(b)(3), (4) (maximum sentence of life imprisonment imposed for an off-grid crime).

More facts will be added as necessary to the analysis.

Analysis Issue: The district court did not err in concluding that K.S.A. 2015 Supp. 21–6806(c) does not authorize a district court to depart from a life sentence for felony murder.

Nguyen argues that because K.S.A. 2015 Supp. 21–6806(c) is silent on durational departures for off-grid crimes, sentencing courts have discretion to grant them—at least for felony murder. She specifically contends this court implicitly acknowledged such discretion to depart from a life sentence for felony murder in State v. Gleason, 277 Kan. 624, 88 P.3d 218 (2004). The State basically counters that the statute's language reveals the intent of the legislature is to prohibit durational departures from sentences for off-grid crimes like felony murder.

Nguyen further argues that once we have agreed the district court had departure discretion, several factors warrant the court's exercise of that discretion to reduce her sentence: her lack of criminal history, her limited role in the murder, and her age and lack of maturity. But because we reject Nguyen's first argument, we do not reach her second one.

Standard of review

Whether the district court has discretion to grant a durational departure from a felony-murder life sentence requires interpretation of the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2015 Supp. 21–6801 et seq., a question of law subject to unlimited review. State v. Luarks, 302 Kan. 972, 976, 360 P.3d 418 (2015) (citing State v. Keel, 302 Kan. 560, 571, 357 P.3d 251 [2015] ).

In exercising our unlimited review, we acknowledge that “ ‘[t]he fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained.’ ” Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015). A statute's language is our paramount consideration because “ ‘ “the best and only safe rule for ascertaining the intention of the makers of any written law is to abide by the language they have used.” ’ ”

State v. Looney, 299 Kan. 903, 906, 327 P.3d 425 (2014) (citing Gannon v. State, 298 Kan. 1107, 1143, 319 P.3d 1196 [2014] [quoting Wright v. Noell, 16 Kan. 601, 607, 1876 WL 1081 (1876) ] ). “When statutory language is plain and unambiguous, there is no need to resort to statutory construction. An appellate court merely interprets the language as it appears; it is not free to speculate and cannot read into the statute language not readily found there.” State ex rel. Schmidt v. City of Wichita, 303 Kan. 650, 659, 367 P.3d 282 (2016).

When legislative intent cannot be derived from the plain language of the statute, this court may look to legislative history or employ other methods of statutory construction. State v. Holt, 298 Kan. 469, 474, 313 P.3d 826 (2013).

Discussion

We start our analysis by acknowledging that K.S.A. 2015 Supp. 21–6806(c) establishes the sentencing for certain off-grid crimes, including felony murder under K.S.A. 2012 Supp. 21–5402(a)(2). The sentencing statute provides:

“Violations of K.S.A. 2015 Supp. 21–5401, 21–5402, 21–5421, 21–5422 and 21–5901, and amendments thereto, are off-grid crimes for the purpose of sentencing. Except as otherwise provided by K.S.A. 2015 Supp. 21–6617, 21–6618, 21–6619, 21–6622, 21–6624, 21–6625, 21–6628, and 21–6629, and amendments thereto, the sentence shall be imprisonment for life and shall not be subject to statutory provisions for suspended sentence, community service or probation.” (Emphasis added.) K.S.A. 2015 Supp. 21–6806(c).

We next note that the exceptions listed in K.S.A. 2015 Supp. 21–6806(c) —K.S.A. 2015 Supp. 21–6617, 21–6618, 21–6619, 21–6622, 21–6624, 21–6625, 21–6628 and 21–6629 —do not provide any exceptions to a life sentence for felony murder. These statutes primarily provide a sentencing scheme for capital murder.

Nguyen argues this court essentially interpreted this language in a predecessor statute—K.S.A. 21–4706(c) —to answer this departure question in State v. Gleason, 277 Kan. 624, 88 P.3d 218. There, the district court denied the defendant's request for a durational departure on his conviction of felony murder and sentenced him to life imprisonment with no possibility of parole for 20 years. We held that the defendant was not entitled to a reduced sentence despite the lighter sentences his codefendants received as part of their plea bargains in which they pled guilty to less serious offenses. 277 Kan. at 656, 88 P.3d 218. Nguyen argues that by reviewing the issue of departure from a life sentence in Gleason, this court implicitly acknowledged the district court had discretion to consider a departure.

But Nguyen's reliance on Gleason is misplaced. The issue before this court concerned whether the district court was required to compare defendant's sentence to the lesser sentences of his codefendants, not whether the sentencing statute allowed for durational departure. 277 Kan. at 656, 88 P.3d 218. So, we reject Nguyen's argument that in Gleason we implicitly acknowledged a district court's discretion to depart from a life sentence for felony murder.

Moreover, since Gleason we twice have expressly stated that the life sentence for felony murder is mandatory. Four years after Gleason we stated: “[T]he district court imposed a mandatory life sentence for the felony murder” and declared: “The sentence imposed for [the defendant's] felony murder, a mandatory life sentence, conforms to the statutory provisions.” (Emphasis added.) State v. Heath, 285 Kan. 1018, 1019, 179 P.3d 403 (2008). In Heath we cited the previous, substantially similar felony-murder sentencing statute in effect at the time, K.S.A. 21–4706(c), which provided in relevant part: “Violations of K.S.A. 21–3401 [ (b) is felony murder] ... are off-grid crimes for the purpose of sentencing.... [T ]he sentence shall be imprisonment for life and shall not be subject to statutory provisions for suspended sentence, community service or probation. ” (Emphasis added.)

Six years after Heath we similarly pronounced in State v. Brown, 300 Kan. 542, 562–63, 331 P.3d 781 (2014) :

“A person convicted of felony murder is subject to a mandatory sentence of life imprisonment. See K.S.A. 21–4706(c). A person serving a life sentence for a felony murder committed after July 1, 1999, becomes parole eligible after 20 years of confinement. K.S.A. 22–3717(b)(2).” (Emphasis added.)

These declarations are consistent with the plain language of K.S.A. 2015 Supp. 21–6806(c) —and its predecessor K.S.A. 21–4706(c) —which provides that a sentence for felony murder “shall be imprisonment for life.” (Emphasis added.) See also State v. Brown, 303 Kan. 995, 1006, 368 P.3d 1101 (2016) (describing K.S.A. 2014 Supp. 21–6806 [c] as an example of “mandatory life sentences assigned by the legislature for off-grid crimes”).

Despite the foregoing, in none of these decisions did we expressly analyze this particular statutory phrase—“the sentence shall be imprisonment for life”—with the language that immediately follows it: “and shall not be subject to statutory provisions for suspended sentence, community service or probation.” K.S.A. 2015 Supp. 21–6806(c). Not surprisingly, Nguyen and the State differ on the meaning and possible significance of this language and whether it introduces ambiguity into the statute.

Nguyen argues that by listing “suspended sentence, community service or probation” the legislature merely prohibited them and any similar unlisted dispositional departures but did not prohibit the durational departure she requested. The State responds this...