State v. Pierce

• Decision Date: 02 March 1990
• Docket Number: No. 62584,62584
• Parties: STATE of Kansas, Appellee, v. Loren K. PIERCE, Appellant.
• Court: Kansas Supreme Court

Page 1189

787 P.2d 1189

246 Kan. 183

STATE of Kansas, Appellee, v. Loren K. PIERCE, Appellant.

No. 62584.

Supreme Court of Kansas.

March 2, 1990.

Syllabus by the Court

1. Whether a defendant is entitled to a hearing on a K.S.A. 21-4603(3) motion to modify sentence is discretionary with the trial court based upon the record before the court at the time.

2. Kansas statutes do not require that counsel be appointed to represent an indigent defendant on K.S.A. 21-4603(3) motions. If the trial court determines from the record that no hearing is required, there is no statutory requirement for the appointment of counsel.

3. If the trial court in the exercise of its discretion determines from the motion, pleadings, and record that a hearing should be held on a K.S.A. 21-4603(3) motion, then it should appoint counsel to represent the defendant.

4. Regulations have the full force and effect of law if they are duly adopted pursuant to statutory authority for the purpose of carrying out the policy declared by the legislature in the statutes.

5. Rules and regulations of an administrative agency, to be valid, must be within the statutory authority conferred upon the agency. Those rules or regulations that go beyond the authority authorized, which violate the statute, or are inconsistent with the statutory power of the agency have been found void. Administrative rules and regulations to be valid must be appropriate and reasonable and not inconsistent with the law.

6. The Sixth Amendment right to counsel in a criminal prosecution only applies to the critical stages of the proceedings against the defendant.

7. A motion to modify sentence pursuant to K.S.A. 21-4603(3) is not a critical stage of the criminal proceedings and does not invoke the Sixth Amendment right to counsel, nor does the failure to appoint counsel constitute a Fifth Amendment denial of due process of law in all such cases.

8. If the court finds that a hearing is necessary on a K.S.A. 21-4603(3) motion, then due process of law does require the appointment of counsel to represent the defendant at such hearing.

Steven R. Zinn, Deputy Appellate Defender, argued the cause and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief for appellant.

Julie McKenna, County Atty., argued the cause and Robert T. Stephan, Atty. Gen., was with her on the brief for appellee.

HOLMES, Justice:

Loren K. Pierce appeals from the denial of his pro se post-appeal motion to modify his sentence. The issues on appeal are whether the defendant is statutorily or constitutionally entitled to counsel in preparing and presenting his motion for modification of sentence.

On July 14, 1986, a jury convicted the defendant of one count of aggravated burglary (K.S.A. 21-3716), one count of aggravated battery (K.S.A. 21-3414), and one count of rape (K.S.A. 21-3502).

On September 8, 1986, the trial court sentenced the defendant to consecutive terms of 5-20 years for the aggravated burglary conviction, 5-20 years for the aggravated battery conviction, and 15 years to life for the rape conviction. In sentencing the defendant, the trial court specifically referred to the defendant's prior criminal record and the excessive force and violence used in committing the present crimes.

Defendant, through his trial attorney, filed a motion to modify his sentence on December 30, 1986, requesting probation or concurrent sentences. Following a hearing, at which defendant was represented by counsel, the trial court denied the motion. At the time the trial court had available and considered, the report of the State Reception and Diagnostic Center (SRDC).

Defendant appealed his original convictions which were upheld by this court in an unpublished opinion filed February 19, 1988. State v. Pierce, 763 P.2d 16. In his direct appeal the defendant made no attempt to raise the denial of his first motion to modify sentence as an issue before this court. On April 15, 1988, the defendant filed, pro se, another motion to modify sentence pursuant to K.S.A. 21-4603(3). In his motion the defendant asked that counsel be appointed "to represent him for purposes of hearing on this motion." The trial court did not hold any hearing on the motion and, on May 5, 1988, issued its ruling which stated in part:

"2. Whether or not a hearing should be afforded to the movant and counsel appointed rests within the discretion of the court.

"3. After reviewing these proceedings, particularly the presentence and SRDC reports and the sentences imposed, the court concludes modification would be inappropriate.

"4. The movant is not entitled to appointment of counsel or further hearings prior to decision of the court as to whether the sentences should be modified. Accordingly, the movant's request for appointment of counsel for this limited purpose is denied.

"IT IS THEREFORE ORDERED that the defendant's sentences previously imposed shall not be modified by the court.

"IT IS FURTHER ORDERED that the defendant's request for the appointment of counsel and the implied request for additional hearing is denied by the court."

Defendant has now appealed the trial court's ruling and asserts that his statutory and constitutional rights to counsel have been violated. In asserting that his statutory rights to counsel have been violated, defendant relies upon K.S.A. 21-4603, K.S.A. 22-4503(a), and K.A.R. 105-1-1. K.S.A. 21-4603 in effect at the time relevant to this proceeding provided in pertinent part:

"(3) Any time within 120 days after a sentence is imposed or within 120 days after probation or assignment to a community correctional services program has been revoked, the court may modify such sentence, revocation of probation or assignment by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits. If an appeal is taken and determined adversely to the defendant, such sentence may be modified within 120 days after the receipt by the clerk of the district court of the mandate from the supreme court or court of appeals."

This subsection of the statute was amended at the 1988 and 1989 legislative sessions but the amendments are not applicable to this appeal.

K.S.A. 21-4603 is the statute which delineates the various alternatives the district court may utilize in disposing of criminal proceedings after a defendant has been found guilty of a crime. Subject to certain specified time restraints, subsection (3) authorizes the court to modify a previously imposed sentence. Action by a court under this subsection may be taken sua sponte or may be based upon a motion by the defendant requesting a modification. The statute does not specify any procedure and does not mandate that a hearing be held or that counsel be appointed to represent a defendant on a motion to modify sentence. While we have not specifically decided the issue of whether a defendant is entitled to counsel for every motion filed pursuant to K.S.A. 21-4603(3), we considered the procedural aspects of the statute at some length in State v. Jennings, 240 Kan. 377, 729 P.2d 454 (1986). The State relies heavily on Jennings.

In Jennings, the defendant filed a motion to modify the sentence imposed after he pled nolo contendere to one count of second-degree murder. The trial court denied the motion without a hearing and the defendant appealed, contending he was entitled to notice and an opportunity to be heard. Justice Herd, writing for a unanimous court, stated:

"K.S.A.1985 Supp. 21-4603(3) authorizes the court to modify a sentence within the statutory limits any time within 120 days after a sentence is imposed; no hearing procedure is discussed. K.S.A.1985 Supp. 21-4603(4) allows reduction of sentence below the statutory minimum upon the recommendation of the secretary of corrections; this subsection specifically provides for a hearing and notice to interested parties. K.S.A. 22-3504 specifically provides for a hearing and that a defendant be personally present for correction of a sentence. These distinctions are significant. The legislature did not provide for a hearing on sentence modification, 21-4603(3).

"K.S.A.1985 Supp. 22-3405(1) sets out the stages in a felony proceeding where the defendant's presence is required and provides as follows:

" 'The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law.' (Emphasis added.)"

"Unless a motion for modification is considered part of the 'imposition of sentence,' the appellant had no right to appear in support of his motion. We resolved this issue in State v. Bryant, 227 Kan. 385, 607 P.2d 66 (1980), where we held that a defendant's right to be present does not extend to post-conviction motions. In so holding, we reasoned that the trial ends when a verdict has been rendered, any right which the accused may have to be present at proceedings following indictment continues only during the pendency of the trial, and a defendant, once convicted, cannot expect to be present at post-conviction motions. See also State v. Myers, 10 Kan.App.2d 266, 271, 697 P.2d 879 (1985), where the Court of Appeals noted that defendant has no right to be present at a ruling on a motion to modify. We agree and hold that a defendant has no right to a hearing on a motion to modify sentence or to be present at consideration of that motion.

"This holding is consistent with federal law. Federal Rule of Criminal Procedure 35(b) is nearly identical to K.S.A.1985 Supp. 21-4603(3). Under that rule, it is discretionary with the trial judge whether to hear testimony or arguments on the motion. 3 Wright, Federal Practice and Procedure: Criminal 2d § 586 p. 405. See also United States v. Donohoe, 458 F.2d 237 (10th Cir.1972), where it was held a defendant has no right to a hearing in open court on a motion to modify...