State v. Reed
| Decision Date | 10 December 1993 |
| Docket Number | No. 68059,68059 |
| Citation | 865 P.2d 191,254 Kan. 52 |
| Parties | STATE of Kansas, Appellee, v. Mona I. REED, Appellant. |
| Court | Kansas Supreme Court |
Steven R. Zinn, Deputy Appellate Defender, argued the cause and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellant.
Kerwin L. Spencer, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellee.
1. When there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute controls unless the legislature intended to make the general act controlling.
2. The fact that the evidence does not support the charge to which the defendant pled guilty does not require that the plea be later vacated.
3. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.
Defendant appeals the revocation of her probation following her guilty plea to felony theft by deception, contrary to K.S.A. 21-3701(b). Defendant contends the district court (1) abused its discretion in revoking her probation and (2) lacked jurisdiction to accept her plea because she was charged under the general theft statute, K.S.A. 21-3701, instead of the welfare fraud statute, K.S.A. 39-720. The Court of Appeals reversed and remanded to the district court with orders to vacate the conviction. The State's petition for review was granted.
The facts are not in dispute. While Reed and her husband were separated, she applied for and received assistance from both the ADC and Food Stamp programs. Her husband, who was employed, moved back into the home, and Reed was no longer eligible for public assistance. Reed, however, failed to inform the appropriate authorities that her husband was again living with her, and she continued to receive assistance.
Reed was charged with one count of felony theft by deception, K.S.A. 21-3701, and three counts of making a false writing, K.S.A. 21-3711. Pursuant to a plea agreement, Reed pled guilty to felony theft, and the State dismissed the false writing charges. The district court sentenced Reed to a term of 1 to 5 years. Reed was granted probation for three years with the following conditions: that she obtain employment, make restitution of $3,522 to the State, perform 100 hours of community service, attend the New Start counseling group, and cooperate with SRS in regard to her daughter, who was in SRS custody.
Ten months after sentencing, the State moved to revoke Reed's probation based on her failure to make monthly restitution payments, attend New Start regularly, obtain employment, complete the required 100 hours of community service, and cooperate with SRS in regard to her daughter. The district court found that Reed had failed to comply with the terms of her probation. The court revoked probation and ordered her to serve the sentence imposed. Reed appealed to the Court of Appeals.
In addition to her claim on appeal that the district court had improperly revoked her probation, Reed argued for the first time that her conviction must be vacated, claiming the district court lacked jurisdiction to accept her plea because she had been erroneously charged with theft by deception, K.S.A. 21-3701(b), instead of welfare fraud, K.S.A. 39-720. Reed cited State v. Wilcox, 245 Kan. 76, 775 P.2d 177 (1989), and State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992), as authority to vacate her conviction.
The State argued the prosecution had proved each element of welfare fraud, K.S.A. 39-720, plus an additional element of intent to permanently keep the property required to prove theft, and Reed's conviction should be affirmed. The State's position was premised on the welfare fraud statute's use of K.S.A. 21-3701 to define the penalty for 39-720, and it asserted this did not affect her conviction under K.S.A. 39-720.
The Court of Appeals first reviewed Reed's challenge to the jurisdiction of the district court to accept her plea to theft alleged in the complaint. It noted that under a similar set of facts in State v. Wilcox, 245 Kan. 76, 775 P.2d 177, Syl. p 2, this court had determined that "K.S.A. 39-720 is the proper statute under which persons accused of welfare fraud should be prosecuted."
In Wilcox, the defendant had received payment from SRS to assist her in the care of her children. Wilcox informed SRS and signed affidavits stating that she never received certain payments from SRS. The agency issued warrants to replace those payments. Later, SRS discovered that Wilcox had cashed the original pay warrants. Wilcox was charged with making a false writing in violation of K.S.A. 21-3711. Wilcox waived her preliminary examination and at arraignment entered pleas of not guilty to the charges. A few days after her arraignment, Wilcox filed a motion to dismiss the charge against her, claiming the complaint was defective because it failed to charge the more specific crime of welfare fraud. After the hearing on the motion, the district court found that the charges were not brought under the proper statute and dismissed the complaint.
This court had observed in Wilcox that K.S.A. 39-720 was "to punish those who obtain or attempt to obtain public assistance by deception." 245 Kan. at 77, 775 P.2d 177. We noted that the statute Wilcox was charged under, K.S.A. 21-3711, proscribed the making of a false writing and was not a specific statute concerning welfare fraud. We pointed out that K.S.A. 21-3711 is a general statute which includes a far greater range of activity than that included within the ambit of K.S.A. 39-720. We then reiterated the well-established rule that when there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute controls unless the legislature intended to make the general act controlling. We upheld the district court's dismissal of the complaint.
In reviewing our decision in Wilcox, the Court of Appeals noted that the legislature enacted K.S.A. 39-720 to create an independent crime of welfare fraud to enforce the Social Welfare Act. The Court of Appeals, citing State v. Micheaux, 242 Kan. 192, 747 P.2d 784 (1987), as authority, found that it was clear that K.S.A. 21-3701, which proscribes theft in its various manifestations, was not a specific statute concerning welfare fraud. The Court of Appeals determined K.S.A. 39-720 specifically proscribed welfare fraud or attempted welfare fraud. Based on Micheaux, the Court of Appeals concluded that because Reed was improperly charged under 21-3701, the district court had no jurisdiction to accept Reed's plea. It vacated Reed's conviction based upon theft. The issue of whether the district court abused its discretion in revoking Reed's probation was found to be moot.
A review of other cases shows that the Court of Appeals misapplied Wilcox when it vacated Reed's sentence. In Williams, 250 Kan. 730, 829 P.2d 892, the defendant was charged with one count of indecent liberties with a child, K.S.A.1992 Supp. 21-3503. During the preliminary examination, evidence was adduced that the child Williams sexually molested was his 14-year-old step-granddaughter. At the conclusion of the hearing, Williams moved to dismiss the complaint, arguing that the evidence presented by the State showed the more specific crime of aggravated incest had been committed rather than the crime charged, indecent liberties with a child. The judge granted Williams' motion to dismiss, finding that the legislature intended the more specific crime of aggravated incest to apply to the facts in evidence. The State appealed.
In Williams, as in Wilcox, we pointed out that when there is a conflict between a statute dealing generally with a crime and another statute dealing specifically with a certain phase of the crime, the specific statute controls unless the legislature intended to make the general crime controlling. We then noted that although the elements of the two crimes are similar, the distinguishing factor is that aggravated incest requires the act to be committed by a biological, step, or adoptive relative of the child, while such a family relationship is not an element in the crime of indecent liberties with a child. After reviewing the statutes, we found it was clear that the legislature intended that aggravated incest, a crime committed by a person related to the victim, be a less serious offense than when a similar act is perpetrated by a person who has no such family relationship with the child. We concluded that when a defendant is related to the victim as set forth in K.S.A. 21-3603(1), the State may charge the defendant with aggravated incest for engaging in the acts prohibited by that statute, but not with indecent liberties with a child.
In State v. Sims, 254 Kan. 1, 862 P.2d 359, filed November 17, 1993, we pointed out that our conclusion in Williams and the corresponding statement in Syl. p 4 caused some to erroneously believe that if the State alleges in the complaint that an individual committed the offense of indecent liberties with a child, the court is without jurisdiction to proceed if the person accused is related to the victim. A clearer statement of the point of law decided in Williams is: Where a defendant is charged in a complaint with a general sexual offense (rape, sodomy, indecent liberties with a child, etc.) and, at the conclusion of the preliminary examination moves to dismiss the complaint on the basis that the evidence has established that the alleged victim is within that degree of...
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...and Kansas has recognized that a court can accept a plea in which the evidence does not support the charge, citing State v. Reed, 254 Kan. 52, 865 P.2d 191 (1993). The State further argues these issues were not properly raised in the trial court and may not be raised for the first time on a......
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...phase of the subject are conflicting, the more specific statute generally controls unless the legislature intended otherwise. State v. Reed, 254 Kan. 52, Syl. p 1, 865 P.2d 191 (1993); see Carmichael v. State, 255 Kan. 10, 15, 872 P.2d 240 (1994). The defendant reasons that the Code, which ......
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