State v. Rice, 86,920.
Decision Date | 31 May 2002 |
Docket Number | No. 86,920.,86,920. |
Parties | STATE OF KANSAS, Appellee, v. JERRY D. RICE, Appellant. |
Court | Kansas Supreme Court |
Shawn E. Minihan, assistant appellate defender, and Randall Hodgkinson, deputy appellate defender, were on the brief for appellant.
Jerry D. Rice, appellant, was on a separate brief pro se.
Michael A. Russell, assistant district attorney, Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were on the brief for appellee.
The opinion of the court was delivered by
Jerry D. Rice appeals from the district court's denial of his motion to correct an illegal sentence.
In 1994, defendant was convicted of first-degree murder for the 1992 killing of his wife for which he received a hard 40 sentence. We affirmed his conviction on his direct appeal. State v. Rice, 261 Kan. 567, 932 P.2d 981 (1997). The facts of the crime are not relevant to the sole issue before us and will not be set forth herein.
In 1999, defendant filed his motion to correct an illegal sentence. The sole basis for the claim of illegality was the verdict entered by the jury in the sentencing phase of the trial. That verdict is as follows:
Defendant contends the omission of the word "especially" before the handwritten "Heinous, Atrocious & Cruel" renders the imposition of the hard 40 sentence illegal.
Under the statutory framework in effect relevant to defendant's conviction and sentencing, whether or not the hard 40 sentence should be imposed was submitted to a jury. K.S.A. 1992 Supp. 21-4625 set forth the eight aggravating circumstances which could be considered. In the case herein, the State gave notice it would seek imposition of the hard 40 sentence and would rely on subsection (3), a crime committed for the purpose of receiving money or any other thing of monetary value, and subsection (6), a crime committed in an especially heinous, atrocious, or cruel manner. Only subsection (6) was before the jury for consideration. In regards thereto, Instruction No. 5 stated:
Instruction No. 8 provided:
In further support of his position that the jury did not make the requisite finding that the crime was committed in an especially heinous, atrocious, or cruel manner, defendant draws our attention to the fact the prosecutor did not use the term "especially" in his final argument to the jury.
In denying the motion herein, the trial judge stated:
It should be noted that the evidence before the jury in the sentencing phase was the evidence presented in the guilt...
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