State v. Paul

Citation175 P.3d 840
Decision Date01 February 2008
Docket NumberNo. 95,105.,95,105.
PartiesSTATE of Kansas, Appellee, v. Daubin PAUL, Appellant.
CourtUnited States State Supreme Court of Kansas

Julie A. McKenna, of. McKenna Law Office, P.A., of Salina, argued the cause and was on the brief for appellant.

Amy J. Henley, assistant county attorney, argued the cause, and Bobby J. Hiebert, Jr., assistant county attorney, Ellen Mitchell, county attorney, and Phill Kline, attorney general, were on the brief for appellee.

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

Daubin Paul was convicted in 2005 of one count of sale of methamphetamine and one count of possession of drug paraphernalia. The trial court determined that his sale of methamphetamine conviction was a severity level 1 drug felony under K.S.A.2006 Supp. 65-4161(c) based upon two similar convictions finalized in 1999. Paul argued that the two 1999 offenses qualified as only one prior offense because both convictions occurred on the same date. The Court of Appeals affirmed in a per curiam opinion. State v. Paul, No. 95,105, 149 P.3d 547, 2007 WL 92664, unpublished opinion filed January 12, 2007. We granted Paul's petition for review.

Facts

On May 13, 2005, Paul was convicted in Saline County of one count of sale of methamphetamine and one count of possession of drug paraphernalia based upon conduct that occurred on July 20, 2004. Defendant acknowledges, and the record establishes, that defendant was twice convicted in 1999 of felony drug convictions "under this section," as specified in K.S.A. 65-4161: an August 30, 1999, conviction for sale of a stimulant (Saline County Case No. 99 CRM 602) and an August 30, 1999 conviction for possession of a stimulant with intent to sell, deliver, or distribute (Saline County Case No. 99 CRM 613). Although the two convictions were finalized on the same day, those convictions resulted from separate conduct occurring on separate days in 1999 and were charged in separate complaints.

The trial court determined that the defendant's present drug conviction was a severity level 1 drug felony under K.S.A.2006 Supp. 65-4161(c) based upon his two similar convictions finalized in 1999. Paul unsuccessfully argued that his present drug conviction could only be a severity level 2 felony drug conviction under K.S.A.2006 Supp. 65-4161(b), because the two prior convictions occurred on the same day and may therefore only be counted as one prior conviction. Paul relied upon State v. Wilson, 6 Kan.App.2d 302, 627 P.2d 1185, aff'd 230 Kan. 287, 634 P.2d 1078 (1981), a decision by the Court of Appeals and affirmed by this court interpreting the provisions of the Kansas Habitual Criminal Act (HCA), K.S.A. 21-4504(2), as it existed prior to the enactment of the Kansas Sentencing. Guidelines Act (KSGA).

Paul raised several additional claims of error before the Court of Appeals. However, his petition for review from the Court of Appeals' decision affirming his convictions and sentence identifies only the issue of the appropriate severity level for his conviction for sale of methamphetamine. In addition to his argument on this issue before the Court of Appeals, Paul claims that the decision in his case is inconsistent with another published decision of the. Court of Appeals, State v. Ruiz-Reyes, 37 Kan.App.2d 75, 149 P.3d 521 (2007), which was decided on the same day. We granted review in Ruiz-Reyes and decide it together with this case on this day. Our decision in Ruiz Reyes demonstrates that no such inconsistency exists between the cases, as the decisions in both cases are based on the applicable plain language of 65-4161. See State v. Ruiz-Reyes, (No. 95,056, this day decided), ___ Kan. ___, 175 P.3d 849, 2008 WL 268930.

Standard of Review

Resolution of this case turns on our interpretation of K.S.A.2006 Supp. 65-4161, a self-contained habitual criminal statute that sets forth the conditions under which the criminal severity level of a conviction will be enhanced at sentencing. "The interpretation of a statute is a question of law over which this court has unlimited review." State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).

When called upon to interpret a statute, the intent of the legislature expressed through the language in the statute governs. When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007). Ordinary words are given their ordinary meanings. A statute should not be read to add language that is not found in it or to exclude language that is found in it. Bryan, 281 Kan. at 159, 130 P.3d 85.

Where the statutory provision or language is ambiguous, that is, where the statute contains provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its language, and leaves us generally uncertain which one of two or more meanings is the proper meaning, we must resort to maxims of construction. See Weber v. Tillman, 259 Kan. 457, 476, 913 P.2d 84 (1996). "The fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained." Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). In addition, courts called on to construe the meaning of ambiguous criminal statutes must consider "`[t]he general rule ... that a criminal statute must be strictly construed in favor of the accused, which simply means that words are given their ordinary meaning. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute.'" State v. McCurry, 279 Kan. 118, 121, 105 P.3d 1247 (2005). Nevertheless, this rule relating to strict construction of criminal statutes "`is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.' [Citation omitted.]" 279 Kan. at 121, 105 P.3d 1247.

Finally, we have noted that Tin construing statutes and determining legislative intent, several provisions of an act or acts, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony if possible. [Citation omitted.]" Petty v. City of El Dorado, 270 Kan. 847, 852, 19 P.3d 167 (2001).

K.S.A.2006 Supp. 65-4161

K.S.A.2006 Supp, 65-4161 provides in relevant part:

"(a) Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to sell, offer for sale or have in such person's possession with intent to sell, deliver or distribute; prescribe; administer; deliver; distribute; or dispense any opiates, opium or narcotic drugs, or any stimulant designated in subsection (d)(1), (d)(3) or (0(1) of K.S.A. 65-4107 and amendments thereto. Except as provided in subsections (b), (c) and (d), any person who violates this subsection shall be guilty of a drug severity level 3 felony.

"(b) If any person who violates this section has one prior conviction under this section or a conviction for a substantially similar offense from another jurisdiction, then that person shall be guilty of a drug severity level 2 felony.

"(c) If any person who violates this section has two or more prior convictions under this section or substantially similar offenses under the laws of another jurisdiction, then such person shall be guilty of a drug severity level 1 felony." (Emphasis added.)

See K.S.A. 65-4161(a), (b), and (c) (language is same).

Application of the plain language of the above statute to the facts of this case yields the following results:, Paul is a person who violated K.S.A.2006 Supp. 65-4161(a) by reason of his 2005 conviction in Saline County of one count of sale of methamphetamine. In 1999 (that is, prior to the time he committed the offense underlying his 2005 conviction), Paul was twice convicted of felony drug charges that qualified "under this section," as set forth in K.S.A.2006 Supp. 65-4161(c). See State v. Crank, 262 Kan. 449, 455-58, 939 P.2d 890 (1997) (holding that the phrase "prior conviction under this section" should be read broadly to include any prior conviction under the Kansas Controlled Substances Act, K.S.A. 65-4101 et seq., or other analogous municipal or foreign provisions). These two 1999 convictions were charged separately and involved different events on separate days in 1999. The inescapable conclusion is that Paul's previous convictions comport perfectly with the plain language of K.S.A.2006 Supp. 65-4161(a) and (c) and that Paul is therefore "guilty of a drug severity level 1 felony" under K.S.A.2006 Supp. 65-4161(c).

Based upon the plain language of the statute, we affirm the decision of the Court of Appeals affirming the district court. However, we recognize that defendant's, primary. argument-that his two prior convictions occurring on the same date required the trial court to treat them as one prior conviction-has created some confusion and should be fully addressed in our opinion. At the same time, we note that to credit Paul's argument, we would have to read into the language of K.S.A.2006 Supp. 65-4161 an additional sequencing requirement.

Paul attempts to create ambiguity not by pointing to the language of K.S.A.2006 Supp. 65-4161, but by asking us to interpret K.S.A. 2006 Supp. 66-4161 in the same way that this court and the Court of Appeals interpreted the HCA, K.S.A. 21-4504, a self-contained sentencing enhancement law that preexisted the enactment of the modern sentencing guidelines. See Wilson, 230 Kan. 287, 634 P.2d 1078; Wilson, 6 Kan.App.2d 302, 627 P.2d 1185.

In order to more fully understand Paul's argument, it is helpful to provide a brief review of the habitual criminal statutes and the interpretation of those statutes by the courts of this state. The HCA was adopted by the Kansas Legislature "in the hope of bringing about a reformation of criminals by an increased penalty for a second offense and when that...

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