State v. Rice
| Decision Date | 30 November 2018 |
| Docket Number | No. 117,322,117,322 |
| Citation | 430 P.3d 430 |
| Parties | STATE of Kansas, Appellee, v. Jerry D. RICE, Appellant. |
| Court | Kansas Supreme Court |
Jerry Rice, appellant, was on the briefs pro se.
Christopher L. Schneider, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
The decision of the court was delivered by Nuss, C.J.:
Jerry Rice appeals the district court's denial of his motions to modify his sentence and to order a new presentence investigation report (PSI) on remand from the Court of Appeals decision vacating his original sentence. Specifically, Rice argues the court erred in not only declaring it had no authority to order probation but also failing to take into account his current health issues and efforts at rehabilitation.
We hold Rice was not prejudiced by the court's denial of his request for a new PSI. But we remand for that court to consider on the record the possibility of ordering probation during his resentencing.
Rice was convicted by a jury in 1994 for the 1992 first-degree premeditated murder of his wife and sentenced to life in prison with no chance of parole for 40 years ("hard 40"). This court affirmed on direct appeal in State v. Rice , 261 Kan. 567, 932 P.2d 981 (1997). Rice later filed a motion to correct an illegal sentence and challenged the wording of the jury verdict. This court affirmed the hard 40 sentence. State v. Rice , 273 Kan. 870, 46 P.3d 1155 (2002).
Rice next sought collateral relief claiming ineffective assistance of counsel. Following a series of remands from the Court of Appeals to the district court and an evidentiary hearing, the Court of Appeals panel ultimately upheld Rice's conviction. Rice v. State , 37 Kan. App. 2d 456, 154 P.3d 537, rev. denied 284 Kan. 946, ––– P.3d –––– (2007); Rice v. State , 43 Kan. App. 2d 428, 225 P.3d 1200 (2010) ; Rice v. State , No. 110,589, 2015 WL 4577279 (Kan. App. 2015), rev. denied 304 Kan. 1018, ––– P.3d –––– (2016). But the panel concluded that Rice's counsel provided ineffective assistance during the penalty phase of his trial. So it vacated his sentence and remanded for a new penalty phase hearing and resentencing. 2015 WL 4577279, at *42.
On July 28, 2016, the district court held a resentencing hearing. There, the State elected not to seek the hard 40. The State and Rice agreed only one possible sentence existed to impose: a life sentence with the possibility of parole after 15 years. Accordingly, the court imposed life imprisonment for the commission of first-degree murder (premeditated) in violation of K.S.A. 1992 Supp. 21-3401, and by the authority of and in accordance with K.S.A. 21-4501(a) (Ensley 1988).
Two months later Rice filed a pro se motion to modify or reduce this sentence. He argued the court had failed to fulfill its duty of individualized sentencing under the scheme preceding the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq . (KSGA). In particular, he claimed he should have been given an updated PSI for the court to consider that took into account his changed physical condition since the last report, i.e., a heart attack, prostate cancer, and removal of one lung.
Rice also claimed the court erred in concluding it had no options other than the sentence imposed and that it could have ordered probation. He argued the court abused its discretion when it failed to analyze the factors that would enter into a discretionary decision.
Rice simultaneously filed a request for an updated PSI under K.S.A. 1992 Supp. 21-4603. In support, he cited the length of time between the original report and his resentencing and the deterioration of his health during that period.
The State responded that under the sentencing statutes in effect at the time Rice committed his crime of conviction, K.S.A. 1992 Supp. 21-4603 et seq ., the only sentence the court could legally impose was life in prison with eligibility for parole after 15 years.
The district court ultimately ruled that Rice had received the only sentence available under the law. Accordingly, his motion for modification was denied and his motion for a new PSI was moot.
This court has jurisdiction to hear Rice's appeal under K.S.A. 2017 Supp. 22-3601 (life sentence).
Rice raises two arguments related to his resentencing on remand. First, he contends the district court had jurisdiction to modify or reduce his sentence and that reduction is mandatory with a recommendation from the Secretary of Corrections. Second, he argues the court erred in concluding that probation was an unavailable option. Issue 1: Does the district court have jurisdiction to modify or reduce Rice's sentence on remand?
Standard of review
Rice's arguments require us to review several sentencing statutes. Interpretation of a sentencing statute is a question of law, and the standard of review is unlimited. State v. Nguyen , 304 Kan. 420, 422, 372 P.3d 1142 (2016). Criminal statutes and penalties in effect at the time of the criminal act are controlling. State v. Overton , 279 Kan. 547, 561, 112 P.3d 244 (2005).
Before the KSGA became effective, a defendant like Rice who committed his crime in 1992 could file a motion to modify his or her sentence within 120 days of sentencing:
"Except when an appeal is taken and determined adversely to the defendant as provided in subsection (4)(b), at any time within 120 days after a sentence is imposed, after probation or assignment to a community correctional services program has been revoked, the court may modify such sentence, revocation of probation or assignment to a community correctional services program by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits and shall modify such sentence if recommended by the Topeka correctional facility unless the court finds and sets forth with particularity the reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the inmate will not be served by such modification." K.S.A. 1992 Supp. 21-4603(4)(a).
Under K.S.A. 1992 Supp. 21-4603(4), a defendant had no right to a hearing on a motion to modify sentence or to be present at consideration of that motion. A sentence would not be disturbed on the ground it was excessive, provided it was within the limits prescribed by law and within the realm of discretion on the part of the trial court, and was not the result of partiality, prejudice, or corrupt motive. State v. Jennings , 240 Kan. 377, 380, 729 P.2d 454 (1986).
By statute, the sentencing court had two alternative responses to a motion to modify a sentence. First, the court had discretion to modify the sentence and impose a less severe penalty "within statutory limits." Second, and by contrast, the court was required to modify a sentence upon recommendation by the Topeka Correctional Facility (TCF)—unless the court made findings on the record that the safety of the public would be jeopardized or the welfare of the inmate not served by such modification.
For the first alternative, the only authorized sentence for a conviction of a Class A felony was life imprisonment with eligibility for parole after 15 years. K.S.A. 21-4501(a) (Ensley 1988); K.S.A. 1992 Supp. 22-3717(b). It follows that no less severe penalty could have been imposed by the sentencing court that would have been within statutory limits. State v. Sargent , 217 Kan. 634, 538 P.2d 696 (1975). So the resentencing court was correct in not modifying Rice's sentence to a lesser term of years.
For the second alternative, an unequivocal recommendation for modification of a sentence by the TCF requires the court to modify the sentence—even if the modification does not conform to statutory limits. State v. Bruce , 255 Kan. 388, 398, 874 P.2d 1165 (1994). This holds even for a Class A felony.
State v. Sargent , 217 Kan. 634, 635-41, 538 P.2d 696 (1975).
In Sargent , the defendant was convicted of first-degree murder and sentenced to life imprisonment. Within 120 days of sentencing, he filed a motion requesting sentence modification. This court held that the trial court correctly refused to modify the life sentence—previously imposed—to a term of years less than life because it would have effectively imposed a less severe penalty not within the statutory limits. The defendant's motion sought to invoke the power of the court to modify—not the power to reduce the minimum term of confinement which required the recommendation of the secretary of corrections.
The Sargent court also held, however, that the district court is authorized to reduce a life sentence to a term of years where (1) such reduction is recommended by the secretary of corrections and (2) the court is satisfied that the best interests of the public will not be jeopardized and that the welfare of the inmate will be served by such reduction. 217 Kan. at 641, 538 P.2d 696 ().
As a result, if the secretary of corrections unequivocally recommended reducing Rice's life sentence to a term of years, the court would have to modify it unless the best interests of the public would be jeopardized or Rice's welfare would not be served by the reduction. While there was a PSI completed at Rice's original sentencing, it is not in the record on appeal. And an updated report was not completed at resentencing. The next question, then, is whether the resentencing court was required to order an updated PSI that may have resulted in a TCF recommendation that Rice should serve a lesser sentence.
Rice contends he was entitled to an updated PSI. He argues the court failed...
To continue reading
Request your trial
-
State v. Myers
...sentence. The 2018 amendments apply here because they were in effect at the time of Myers' current offense. See State v. Rice , 308 Kan. 1510, 1512, 430 P.3d 430 (2018).Before the 2018 amendments, K.S.A. 2017 Supp. 8-1567(i)(1) and (3) provided:"For the purpose of determining whether a conv......
-
State v. Valdiviezo-Martinez
...because the substantive law in effect at the time of the crime's commission defines what the State must prove. See State v. Rice , 308 Kan. 1510, 1512, 430 P.3d 430 (2018). Valdiviezo-Martinez contends the crime of identity theft, if committed, was completed in 2005 when he filled out the e......
-
City of Colby v. Foster
...here. Contrary to the City's assertion, typically, the law in effect at the time of the criminal act controls. See State v. Rice , 308 Kan. 1510, 1512, 430 P.3d 430 (2018) ; Norris v. Kansas Employment Security Bd. of Review , 303 Kan. 834, 841, 367 P.3d 1252 (2016). Foster committed the cr......
- State v. Hayes