State v. Stubbs, 124,176

CourtCourt of Appeals of Kansas
Writing for the CourtPER CURIAM
PartiesState of Kansas, Appellee, v. Justin W. Stubbs, Appellant.
Docket Number124,176
Decision Date16 September 2022

State of Kansas, Appellee,
v.

Justin W. Stubbs, Appellant.

No. 124,176

Court of Appeals of Kansas

September 16, 2022


NOT DESIGNATED FOR PUBLICATION

Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge.

Jacob Nowak, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., COBLE, J., and PATRICK D. MCANANY, S.J.

MEMORANDUM OPINION

PER CURIAM

Jason W. Stubbs argues that he qualified for noncustodial substance abuse treatment under Senate Bill 123 and the district court erred by sending him to prison for possession of methamphetamine. He argues that an ambiguity in the sentencing statutes would permit this disposition. We disagree and affirm his sentence.

Stubbs pleaded guilty to possession of methamphetamine. His convictions for felony drug possession triggered special sentencing rule 26, which calls for presumptive imprisonment for a third or subsequent felony drug possession.

1

At sentencing, Stubbs argued that SB 123 mandated treatment. He therefore contended that SB 123 overruled special rule 26 because there was no exception for people that fall within special rule 26 in SB 123. Stubbs otherwise qualified for SB 123 treatment if special rule 26 did not apply.

The district court held that Stubbs' argument conflicted with the intent of the statutes. The court explained that under Stubbs' interpretation, special rule 26 could never be imposed because every offender convicted of felony drug possession would receive mandatory SB 123 treatment no matter how many prior convictions they had. The district court rejected Stubbs' argument and sentenced him to 20 months in prison.

Stubbs asks us to reverse the sentencing court's finding that he is ineligible for SB 123 treatment and remand his case for resentencing. To resolve this claim we must review three statutes.

Senate Bill 123 is found at K.S.A. 2021 Supp. 21-6824. It provides for a mandatory nonprison sanction of certified drug abuse treatment for certain defendants charged with drug possession:

"(a) There is hereby established a nonprison sanction of certified drug abuse treatment programs for certain offenders who are sentenced on or after November 1, 2003. Placement of offenders in certified drug abuse treatment programs by the court shall be limited to placement of adult offenders convicted of a felony violation of K.S.A. 21-5705 or 21-5706 and amendments thereto, whose offense is classified in grid blocks
(1) 5-C, 5-D, 5-E, 5-F, 5-G, 5-H, or 5-I of the sentencing guidelines grid for drug crimes and such offender has no felony conviction of K.S.A. 65-4142, 65-4159, 65-4161 65-4163 or 65-4164, prior to their repeal, K.S.A. 21-36a03, 21-36a05 or 21-36a16, prior to their transfer, or K.S.A. 21-5703, 21-5705, or 21-5716, and amendments thereto, or any substantially similar offense from another jurisdiction[.]"

2

K.S.A. 2021 Supp. 21-6604(n) makes treatment mandatory for defendants who meet the requirements of SB 123 unless another statute applies:

"(1) Except as provided by K.S.A. 21-6630 and 21-6805(f), and amendments thereto, in addition to any of the above, for felony violations of K.S.A. 21-5706, and amendments thereto, the court shall require the defendant who meets the requirements established in K.S.A. 21-6824, and amendments thereto, to participate in a certified drug abuse treatment program, as provided in K.S.A. 75-52,144, and amendments thereto[.]"

K.S.A. 2021 Supp. 21-6805(f)-known as the three strikes rule-and special rule 26 makes a third or subsequent felony drug possession conviction a presumptive prison sentence and directs how defendants may participate in drug abuse treatment and how that...

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