State v. Roderick

• Citation: 259 Kan. 107,911 P.2d 159
• Decision Date: 26 January 1996
• Docket Number: 72892 and 72893,Nos. 72891,s. 72891
• Parties: STATE of Kansas, Appellant, v. Michael L. RODERICK, Appellee.
• Court: United States State Supreme Court of Kansas

Page 159

911 P.2d 159

259 Kan. 107

STATE of Kansas, Appellant, v. Michael L. RODERICK, Appellee.

Nos. 72891, 72892 and 72893.

Supreme Court of Kansas.

Jan. 26, 1996.

Syllabus by the Court

1. An appeal on a question reserved under K.S.A.1994 Supp. 22-3602(b)(3) is permitted to provide an answer which will aid in the correct and uniform administration of the criminal law. This court will not entertain a question reserved merely to demonstrate errors of a trial court in rulings adverse to the State. Questions reserved generally presuppose that the case at hand has concluded but that an answer to an issue of statewide importance is necessary for proper disposition of future cases.

2. By defining "prior conviction" in K.S.A.1994 Supp. 21-4710(a), the legislature did not intend for the Habitual Criminal Act rule identified in State v. Wilson, 6 Kan.App.2d 302, 306, 627 P.2d 1185 aff'd 230 Kan. 287, 634 P.2d 1078 (1981) (sentence enhancement requires conviction prior to commission of the subsequent offense), to apply to the criminal history classification under the Kansas Sentencing Guidelines Act, K.S.A.1994 Supp. 21-4701 et seq.

3. K.S.A.1994 Supp. 21-4720(b) applies to multiple convictions arising from multiple counts within an information, complaint, or indictment and not to multiple convictions entered on the same date in different cases.

4. The definition of "prior conviction" in K.S.A.1994 Supp. 21-4710(a) is not ambiguous. A "prior conviction" includes multiple convictions entered on the same date in different cases for purposes of sentencing for any of those convictions. An "inclusive rule" is adopted. When the presumptive sentence for the first crime is being determined, the second and third crimes are included in the criminal history score. When the presumptive sentence for the second crime is being determined, the first and third crimes are included in the criminal history score, and so on.

5. Under the fundamental rule of statutory construction, the intent of the legislature governs when that intent can be ascertained from the statute. When a statute is plain and unambiguous, an appellate court must give effect to the intention of the legislature, rather than determine what the law should or should not be. The general rule is that a criminal statute must be strictly construed in favor of the accused. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.

6. Repeal by implication is not favored. Legislation will not be held to have been repealed by implication unless a later enactment is so repugnant to the provisions of the first statute that both cannot be given force and effect. Repeal by implication is not applied when both statutes may operate independently without conflict.

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Appeal from Sedgwick district court; Gregory L. Waller, Judge. Appeal sustained.

Doyle Baker, Assistant District Attorney, argued the cause, and Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, were with him on the brief, for appellant.

Michael J. Helvey, Assistant Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellee.

SIX, Justice:

This first impression case requires us to interpret the definition of "prior conviction" in K.S.A.1994 Supp. 21-4710(a) for purposes of determining the criminal history score under the Kansas Sentencing Guidelines Act (the guidelines), K.S.A.1994 Supp. 21-4701 et seq.

Michael L. Roderick, on the same day in the same district court, entered guilty pleas in three separate criminal cases for four offenses committed on different dates. At sentencing, the district court determined that none of the convictions could be included in Roderick's criminal history score. The State appeals upon a question reserved by the prosecution under K.S.A.1994 Supp. 22-3602(b)(3), the statute conferring our jurisdiction.

"An appeal on a question reserved is permitted to provide an answer which will aid in the correct and uniform administration of the criminal law. This court will not entertain a question reserved merely to demonstrate errors of a trial court in rulings adverse to the State. Questions reserved presuppose that the case at hand has concluded but that an answer to an issue of statewide importance is necessary for proper disposition of future cases." City of Wichita v. Basgall, 257 Kan. 631, Syl. p 1, 894 P.2d 876 (1995).

We find that this case has sufficient statewide importance to warrant entertaining the appeal, in that it involves interpretation of the guidelines provisions.

The question reserved is as follows: Does the fact that a defendant enters guilty pleas for multiple offenses in separate cases on the same date preclude the use of those convictions in determining the defendant's guidelines criminal history score for sentencing on those offenses? The answer is, "No."

We sustain the appeal. The district court erred in declining to include in Roderick's criminal history score convictions entered on the same day in separate cases for offenses committed on different dates.

FACTS

On May 20, 1993, Roderick pled guilty to: (a) one count of theft, K.S.A. 21-3701(a), in No. 92 CR 826; (b) one count of aggravated failure to appear, K.S.A. 21-3814, in No. 92 CR 1373; and (c) one count of theft and one count of burglary, K.S.A.1992 Supp. 21-3715(1), in No. 93 CR 873. The district court suspended sentencing for 3 years.

Roderick's suspended sentences were revoked on September 27, 1994, and he received a controlling 1- to 5-year prison term. Under K.S.A.1994 Supp. 21-4724(f), a hearing was held to determine Roderick's guidelines presumptive sentence for conversion purposes. (Roderick appeared to be eligible for conversion of his sentence under the limited retroactivity provision in K.S.A.1994 Supp. 21-4724[f].) The State agreed that Roderick had no criminal convictions other than those for which he was being sentenced.

Roderick contended that none of the convictions entered on May 20, 1993, the date he pled guilty, should be counted in his criminal history. The State disagreed.

The sentencing court agreed with Roderick, reasoning that none of the convictions could be counted because they had all been entered on the same date. The judge stated:

"It is my belief and opinion under the law of the State of Kansas, as it had existed for a number of years under the old Habitual Criminal Act, for example, if an individual pled to cases on the same day, those were considered one conviction for the purposes of the Habitual Criminal Act."

The sentencing court used criminal history category I under K.S.A.1994 Supp. 21-4709 and the mid-range on the K.S.A.1994 Supp. 21-4704 grid for Roderick to determine a guidelines controlling presumptive sentence of 12 months.

DISCUSSION

K.S.A.1994 Supp. 21-4710(a)

Resolution of the criminal history sentencing issue involves the interpretation of various provisions of the guidelines. The interpretation of statutes is a question of law, and, thus, our scope of review is unlimited. State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993).

Under the fundamental rule of statutory construction, the intent of the legislature governs when that intent can be ascertained from the statute. When a statute is plain and unambiguous, we must give effect to the intention of the legislature, rather than determine what the law should or should not be. State v. Cox, 258 Kan. 557, Syl. p 7, 908 P.2d 603 (1995). From our reading of K.S.A.1994 Supp. 21-4710(a), the key statute, we conclude that it means what it says. We reason that a plain reading of 21-4710(a) effects legislative intent.

A "prior conviction" is defined at K.S.A.1994 Supp. 21-4710(a) as

"any conviction which occurred prior to sentencing in the current case regardless of whether the offense that led to the prior conviction occurred before or after the current offense or the conviction in the current case."

The general rule is that a criminal statute must be strictly construed in favor of the accused. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. Cox, 258 Kan. 557, Syl. p 7, 908 P.2d 603.

K.S.A.1994 Supp. 21-3110(4) provides that the term " '[c]onviction' includes a judgment of guilt entered upon a plea of guilty."

K.S.A.1994 Supp. 21-4710(d)(11) provides in relevant part: "Except as otherwise provided, all other prior convictions will be considered and scored."

Roderick points out that K.S.A.1993 Supp. 21-4710 was amended twice by the legislature in 1994, first at L.1994, ch. 291, § 54 (K.S.A.1994 Supp. 21-4710), and then at L.1994, ch. 341, § 15 (K.S.A.1994 Supp. 21-4710a). K.S.A.1994 Supp. 21-4710a does not contain the "prior conviction" definition, nor does it contain the language of 21-4710(d)(11) referencing prior convictions. Roderick argues those omissions from K.S.A.1994 Supp. 21-4710a indicate that the legislature intended to eliminate the definition of "prior conviction" from the statute.

The legislative history indicates that two separate amendments (Senate Substitute for House Bill 2332 and House Bill 2788) to K.S.A.1993 Supp. 21-4710 proceeded through the legislative process in 1994, and both were approved near the end of the session, before the separate amendments were reconciled.

Repeal by implication is not favored, and acts will not be held to have been repealed by implication unless a later enactment is so repugnant to the provisions of the first act that both cannot be given force and effect. City of Salina v. Jaggers, 228 Kan. 155, 169, ...