State v. Taylor, 81,522.
| Decision Date | 18 February 2000 |
| Docket Number | No. 81,522.,81,522. |
| Parties | STATE OF KANSAS, Appellee, v. ALLEN D. TAYLOR, Appellant. |
| Court | Kansas Court of Appeals |
Niki Christopher, assistant appellate defender, Lisa Nathanson, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, for appellant.
Michelle M. Sehee, assistant district attorney, Nola Foulston, district attorney, and Carla J. Stovall, attorney general, for appellee.
Before JUSTICE ALLEGRUCCI, presiding, STEVE LEBEN, District Judge, assigned, and NELSON E. TOBUREN, District Judge, assigned.
This case presents a question of statutory interpretation related to the sentencing of a persistent sex offender. Specifically, the court must determine whether a prior conviction upon which a defendant has been classified as a persistent sex offender may be used when calculating his criminal history score for sentencing purposes. Because we conclude that the trial court's use of the prior conviction for both of these purposes was contrary to law, we reverse and remand for resentencing.
The defendant here, Allen D. Taylor, pled no contest in 1998 to two counts of aggravated indecent liberties with a child. He had a prior conviction in 1985 of indecent liberties with a child, which made him eligible for sentencing as a persistent sex offender. See K.S.A. 1998 Supp. 21-4704(j) and K.S.A. 1998 Supp. 22-3717(d)(2). As part of his plea bargain, Taylor stipulated for sentencing purposes that he was a persistent sex offender.
When a person is sentenced as a persistent sex offender, the court must first determine the presumptive term of imprisonment. The statute then requires that a sentence of double that length be imposed. K.S.A. 1998 Supp. 21-4704(j).
Under the Kansas Sentencing Guidelines Act, the defendant's presumptive sentence is determined on a grid box that reflects two factors: severity of the crime and criminal history. The greater the criminal history, the more severe the sentence. The criminal history range in the sentencing grid box runs from category A, the most serious, in which the defendant has three or more prior person felonies, to category I, the least serious, in which the defendant has at most one prior misdemeanor.
Taylor had one prior person felony, the 1985 conviction of indecent liberties with a child. In addition, he had three prior nonperson felonies. The trial court concluded that he should be given a criminal history score of category C, the third highest history score out of nine, which applies to a defendant with one prior person felony and one or more prior nonperson felonies. Had the prior person felony not been considered in calculating his criminal history, Taylor would have had a criminal history score of category E, the fifth highest history score out of nine, which applies to a person with three or more prior nonperson felonies but no prior person felonies. This is not a trivial difference: the use of category C instead of category E results, after the required doubling of the maximum presumptive sentence, in a term of imprisonment of 178 months rather than 154 months, a 2-year increase. Taylor objected to the trial court's inclusion of the 1985 indecent liberties conviction in calculating his criminal history score based on K.S.A. 21-4710(d)(11), which provides:
Taylor argues that the prior indecent liberties conviction had already been used to classify him as a persistent sex offender, which clearly enhances the applicable penalty by doubling the presumptive sentence. Thus, Taylor argues, the prior conviction cannot be used in determining his criminal history category.
The State's primary argument in response is that the legislature obviously intended the statute to be read to promote long sentences for persistent sex offenders. Thus, the State argues, the "purposes of the persistent sex offender statute would be undermined if the courts were not able to give the maximum possible sentence."
The State's argument might be relevant if there were some ambiguity in the statute at issue. However, the statute's meaning is quite plain, and its history and interrelationship with related statutes make it apparent that a prior conviction upon which the classification of the defendant as a persistent sex offender has been made cannot be separately used to calculate his criminal history category.
We start with the language of the statute at issue, K.S.A. 21-4710(d)(11). When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed and may not use its own judgment to determine what the law should be. Hartford Cas. Ins. Co. v. Credit Union 1 of Kansas, 268 Kan. 121, 124-25, 992 P.2d 800 (1999). Here, the statute flatly prohibits use of prior convictions to determine the criminal history category "if they enhance the severity level or applicable penalties." There can be no doubt that classification as a persistent sex offender enhances the applicable penalties—K.S.A. 1998 Supp. 21-4704(j) requires that the presumptive sentence be doubled for this class of offenders. Accordingly, K.S.A. 21-4710(d)(11) forbids additional use of the prior conviction when determining the criminal history score of a persistent sex offender.
This conclusion is further supported by analysis of the relationship between K.S.A. 21-4710(d)(11) and the state's separate statutes dealing with predatory sex offenders and persistent sex offenders. Statutes relating to predatory sex offenders were first passed in 1994, see L. 1994, ch. 341, § 2, the same year that K.S.A. 21-4710(d)(11) was added. See L. 1994, ch. 291, § 54. The predatory sex offender provision, now codified at K.S.A. 1998 Supp. 21-4716(b)(2)(F)(ii), specifically addresses whether the prior conviction used to classify a defendant as a predatory sex offender may be used to determine his criminal history category: "Any prior conviction used to establish the defendant as a predatory sex offender pursuant to this subsection shall also be counted in determining the criminal history category." K.S.A. 1998 Supp. 21-4716(b)(2)(F)(ii)(a). Thus, in the specific statute governing predatory sex offenders, the legislature had explicitly provided that the prior conviction upon which the classification was made would also be used to determine the criminal history category.
A year later, in 1995, the legislature further clarified this point. As the statutes were initially enacted in 1994, one might have argued that K.S.A. 21-4710(d)(11) and 21-4716(b)(2)(F)(ii) were in conflict. Various canons of construction might have been cited to resolve the apparent conflict, but could have led to different conclusions. One might have argued that the more specific statute (the predatory sex offender statute) governs over the more general one (the generic criminal history statute), but an opponent might have countered that criminal penalty statutes must be narrowly construed. Although there are no published appellate decisions in which these arguments were made, we suspect they were made at the trial court level because the legislature resolved the potential conflict in a 1995 amendment to K.S.A. 21-4710(d). After that amendment was adopted, K.S.A. 21-4710(d) began with the phrase, "Except as provided in K.S.A. 21-4716." Thus, after passage of that amendment, it was absolutely clear that the provision of K.S.A. 21-4710(d)(11) could not be held to override the clear language of K.S.A. 1998 Supp. 21-4716(b)(2)(F)(ii)(a), which required consideration of the predatory sex offender's prior convictions in determining his criminal...
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