State v. Scherzer
| Citation | 869 P.2d 729,254 Kan. 926 |
| Decision Date | 04 March 1994 |
| Docket Number | No. 70590,70590 |
| Parties | STATE of Kansas, Appellant, v. Patrick L. SCHERZER, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. This court has general statutory jurisdiction to correct, modify, vacate, or reverse any act, order, or judgment of a district court in order to assure that any such act, order, or judgment is just, legal, and free of abuse. K.S.A.1992 Supp. 60-2101(b). The court has specific statutory jurisdiction to correct an illegal sentence at any time. K.S.A. 22-3504.
2. Rules of statutory construction are discussed.
3. In K.S.A.1992 Supp. 21-3405a, aggravated vehicular homicide, the legislature authorized that the minimum required term of imprisonment could be served either in the 4. K.S.A.1992 Supp. 21-3405b requires 90 days' imprisonment be served prior to any suspension of sentence. The district court does not have statutory authority to allow a defendant to serve the required 90 days' imprisonment by house arrest.
county jail, by house arrest, or by any other residential confinement. The legislature used different language in K.S.A.1992 Supp. 21-3405b, vehicular battery. The presumption is that the legislature made a conscious choice to use different language in the two statutes and intended a different type of sentence be imposed for these offenses.
5. Cruel and unusual punishment involves punishment that shocks the conscience or which seems inhumane or barbarous.
6. A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down.
John K. Bork, Deputy Atty. Gen., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellant.
Jay H. Vader, of Turner & Vader, Chtd., Kansas City, argued the cause, and was on the brief, for appellee.
The defendant pled guilty to three counts of vehicular battery, K.S.A.1992 Supp. 21-3405b, a class A misdemeanor. The defendant was fined $1,000 and sentenced to one year's imprisonment on each count, with the sentences to be served concurrently. The court ordered the defendant to serve 90 days of imprisonment by house arrest, to be followed by probation. The State appeals the court's order allowing the defendant to serve the 90 days of imprisonment by house arrest rather than imprisonment required by 21-3405b(b)(2). The two issues raised are: (1) Does house arrest constitute "imprisonment" under K.S.A.1992 Supp. 21-3405b(b)(2), and (2) was the sentence imposed illegal?
Patrick Scherzer, a former county commissioner in Wyandotte County, was charged with two counts of DUI; one count of driving a vehicle on a divided highway in the wrong direction, and six counts of vehicular battery of six different victims resulting from a traffic accident that occurred on December 21, 1992. Pursuant to a plea bargain, Scherzer pled guilty to three counts of vehicular battery. The State dismissed the remainder of the charges.
Prior to pleading guilty, Scherzer had challenged the constitutionality of the vehicular battery statute penalty requirement that a person is not eligible for release on probation, suspension or reduction of sentence, or parole until that person has served at least 90 days' "imprisonment." To support his argument, Scherzer pointed out that aggravated vehicular homicide, K.S.A.1992 Supp. 21-3405a, a class D felony, where a victim has died, expressly allows for house arrest or other residential confinement in lieu of imprisonment in the county jail, while vehicular battery, a class A misdemeanor, where the victim is not killed but injured, requires the defendant to serve 90 days' imprisonment without the option of house arrest or other residential confinement. Scherzer claimed that the differences in penalties between the two statutes constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.
At sentencing, Scherzer sought to serve the 90 days of imprisonment by house arrest, and he argued that K.S.A. 21-4603b, the statute defining house arrest, made house arrest synonymous with imprisonment. The State, however, noted that the aggravated vehicular homicide statute specified house arrest could be imposed in lieu of imprisonment, while the vehicular battery statute required imprisonment. The State argued that Scherzer was not eligible for probation, house arrest, or work release until he had actually served 90 days' imprisonment in the county jail. The State claimed that the legislature intended to exclude house arrest as an option of imprisonment for the crime of vehicular battery. The State also argued that the statute is constitutional. The State requested The district court fined Scherzer $1,000 for each count and sentenced him to one year on each count, to be served concurrently. The district court then addressed Scherzer's claims that the penalty imposed by 21-3405b was unconstitutional. The court reviewed the two statutes and their penalty requirements, then noted that vehicular battery required imprisonment prior to imposing other sentencing options. The State argued that the reason the legislature set the different penalties was that vehicular homicide is a class D felony and the offender could receive a longer sentence than a person convicted of a class A misdemeanor (vehicular battery). The district judge acknowledged the State's argument but found that the legislature had merely overlooked the difference in the sentence requirements and stated it was "inconceivable ... the legislature meant that if a person kills someone that they can be given house arrest but if they only injure someone they can't be given house arrest." The district judge found he would have to impose a harsher sentence for a misdemeanor than for a felony. He then applied State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978), for the test of whether the constitutional prohibition against cruel and unusual punishment was violated. The judge reasoned that under such circumstances the penalty provision of 21-3405b offended the constitutional prohibition against cruel and unusual punishment and would be unconstitutional. The judge opined that by reading the vehicular battery statute as allowing the use of house arrest as imprisonment, the statute passed the test in Freeman and was constitutional.
that the judge impose a $1,000 fine and sentence the defendant to serve one year's incarceration in the county jail on each count.
The court granted Scherzer probation to begin after he had served 90 days of imprisonment by house arrest, to be monitored by the Wyandotte County Pre-trial Services. Scherzer was also allowed to spend up to 20 hours a week on work release, with any time spent on work release to be added to his house arrest so that he would still have served a full 90 days of house arrest.
The State subsequently filed its notice of appeal in the Court of Appeals. The notice stated that the sentence allowing the defendant to serve the 90 days by house arrest instead of imprisonment violated the requirement of 21-3405b(b)(2). The same day, the State filed in the district court a motion to stay execution of Scherzer's sentence. The State alleged that if the sentence was not stayed, the entire imprisonment portion of the sentence would be served before an appeal could be heard and the State would be left without a remedy if the sentence imposed by the district court was found to be illegal. This was the first time the State had claimed that the sentence imposed by the district court was illegal. The district court did not rule on the motion.
A flurry of appellate activity followed. The State filed a motion in the Court of Appeals to stay the execution of the sentence until the appeal had been resolved. Neither the notice of appeal nor the docketing statement filed in the Court of Appeals stated the basis of or which appellate court had jurisdiction to hear the State's appeal. On November 4, 1993, this court noted that the appeal had been filed in the wrong appellate court and ordered the case transferred under K.S.A. 20-3018(a) and (c). We then issued a show cause order requesting the State to establish the jurisdictional basis for the appeal. On November 24, 1993, this court issued an order staying execution of Scherzer's imprisonment by house arrest.
The State characterizes its appeal as whether the sentence imposed by the district court is illegal. This court has previously accepted an appeal by the State alleging an illegal sentence, albeit without explaining the jurisdictional authority for our review of the sentence imposed. See State v. Keeley, 236 Kan. 555, 694 P.2d 422 (1985). We note this court has general statutory jurisdiction to correct, modify, vacate, or reverse any act, order, or judgment of a district court in order to assure that any such act, order, or judgment is just, legal, and free of abuse. K.S.A.1993 Supp. 60-2101(b). The court also has specific statutory jurisdiction to correct an illegal sentence at any time. K.S.A. 22-3504. We have jurisdiction to consider the State's appeal.
DOES HOUSE ARREST CONSTITUTE "IMPRISONMENT?"
Was the district judge correct in determining that the legislature had merely overlooked the difference in the penalty imposed for aggravated vehicular homicide and vehicular battery? Did the legislature intend "that if a person kills someone that they can be given house arrest but if they only injure someone they can't be given house arrest?"
A review of the legislative history of the vehicular battery statute supports the conclusion that imprisonment, under 21-3405b, was not intended to include house arrest.
The 1988 legislature, which authorized house arrest, L.1988, ch. 115, § 7, also amended the aggravated vehicular homicide statute, ...
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