State v. Vega-Fuentes

Decision Date06 March 1998
Docket NumberVEGA-FUENTE,No. 75518,A,75518
Citation955 P.2d 1235,264 Kan. 10
PartiesSTATE of Kansas, Appellee, v. Tomasppellant.
CourtKansas Supreme Court

Syllabus by the Court

1. The interpretation of the Kansas Sentencing Guidelines Act is a question of law, and the appellate court's scope of review is unlimited.

2. The fundamental rule of statutory construction is that the intent of the legislature governs when that intent can be ascertained from the statute.

3. The general rule is that criminal statutes 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. This rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.

4. In construing statutes and determining legislative intent, several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony if possible.

5. Construing K.S.A.1994 Supp. 21-4711(a) together with K.S.A.1994 Supp. 21-4710(d)(7), as part of an overall statutory scheme to determine criminal history classification, it is held that the legislature intended convictions for violations of municipal ordinances to be treated in the same manner as comparable misdemeanors for purposes of calculating criminal history, including aggregation under K.S.A.1994 Supp. 21-4711(a).

Lisa Nathanson, Assistant Appellate Defender, argued the cause, and Thomas W Bartee, Assistant Appellate Defender, Steven R. Zinn, Deputy Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, were on the briefs for appellant.

Scott M. Schultz, Assistant County Attorney, argued the cause, and John P. Wheeler, Jr., County Attorney, and Carla J. Stovall, Attorney General, were with him on the brief for appellee.

DAVIS, Justice:

This case comes before us upon petition for review and presents the question of whether appropriate municipal ordinance violations can be aggregated to constitute a person felony for criminal history purposes under K.S.A.1994 Supp. 21-4711(a). We hold, contrary to the decision of the Court of Appeals in State v. Vega-Fuentes, 24 Kan.App.2d 93, 96, 942 P.2d 42 (1997), that appropriate municipal ordinance violations can be aggregated under K.S.A.1994 Supp. 21-4711(a).

The defendant pled no contest to two counts of possession of cocaine with intent to sell. According to the factual basis set out for the pleas, the crimes were committed August 1, 1994. The trial court ordered a presentence investigation (PSI) report and set sentencing for July 28, 1995.

The defendant's PSI report indicated that he had two prior misdemeanor convictions, one for theft and one for battery, as well as three prior convictions for violations of municipal ordinances, one for battery, one for disorderly conduct in a club/tavern, and one for assault on a law enforcement officer. The misdemeanor battery, municipal ordinance battery violation, and municipal ordinance assault on a law enforcement officer violation were aggregated and converted to a one-person felony for purposes of criminal history pursuant to K.S.A.1994 Supp. 21-4711(a). Thus, the defendant's criminal history was scored as category D.

The defendant filed objections to his criminal history, contesting identity and arguing that his prior municipal ordinance violations should not be scored as criminal history. Specifically, the defendant argued that the two municipal ordinance violations could not be aggregated with his misdemeanor conviction under K.S.A.1994 Supp. 21-4711(a) to establish a one-person felony. Without aggregation, the defendant's criminal history category would be H.

The presumptive sentence for an offender in grid block 3-D of the drug grid is imprisonment for 23 to 36 months. The presumptive sentence for an offender in grid block 3-H of the drug grid is imprisonment for 17 to 19 months. On a motion of the defendant, sentencing was continued to allow for an evidentiary hearing regarding his objections.

Following the evidentiary hearing, the trial court overruled the defendant's objections and found that the defendant's criminal history was category D. The defendant moved to withdraw his no contest plea, which motion was denied. The defendant then asked to be allowed to file a request for durational departure. The district court refused to allow the filing of the request, noting that the defendant was aware from the PSI report that his criminal history, absent any changes from the hearing, would be category D, and the request was not timely under the circumstances.

The defendant was sentenced to concurrent terms of 34 months on both counts of possession of cocaine with intent to sell, followed by a 24-month post-release supervision period. The court informed the defendant that he would be eligible for up to 15% of good time credit. The defendant objected to the amount of good time credit, noting that because the crime occurred prior to April 20, 1995, the 20% good time credit should apply. The district court stated that it would let the Secretary of Corrections decide the good time credit issue.

The defendant appealed, raising the following issues before the Court of Appeals: (1) The district court erred in scoring the defendant's prior municipal court violations for the purposes of criminal history and in aggregating the two person municipal ordinance violations with the person misdemeanor to make one felony conviction; (2) the Due Process Clause forbids the judicial enlargement of the plain language of K.S.A.1994 Supp. 21-4711(a); (3) the district court erred in finding that the defendant had been convicted of the municipal ordinances; (4) the district court had erroneously precluded the defendant from filing a motion for departure; (5) the defendant was denied his right to allocution, and (6) the Ex Post Facto Clause prohibits the retroactive application of the 15% good time credit.

On the issue of whether the district court erred in aggregating the defendant's convictions for violations of municipal ordinances, the Court of Appeals concluded that while convictions for the violation of municipal ordinances become part of criminal history, they may not be aggregated to constitute a person felony for criminal history purposes under K.S.A.1994 Supp. 21-4711. As a result, the Court of Appeals vacated the defendant's sentence and remanded the case to the district court. Because of its holding, the Court of Appeals found it unnecessary to address the other alleged errors raised except for the defendant's contention that the State had failed to prove his municipal court convictions for battery and assault on a law enforcement officer. The Court of Appeals held that the district court had not erred in finding that the violations had been proven. 24 Kan.App.2d at 96-97, 942 P.2d 42.

We granted the State's petition for review on the sole issue of whether appropriate municipal ordinance violations could be aggregated to constitute a felony for criminal history purposes under the provisions of K.S.A.1994 Supp 21-4711(a). This question is one involving the interpretation of the Kansas Sentencing Guidelines Act (KSGA). The interpretation of the KSGA is a question of law, and this court's scope of review is unlimited. State v. Miller, 260 Kan. 892, 895, 926 P.2d 652 (1996).

K.S.A.1994 Supp. 21-4710(d)(7) provides: "All person misdemeanors, class A nonperson misdemeanors and class B select nonperson misdemeanors, and all municipal ordinance and county resolution violations comparable to such misdemeanors, shall be considered and scored." (Emphasis added.)

K.S.A.1994 Supp. 21-4711, in pertinent part, provides:

"In addition to the provisions of K.S.A.1994 Supp. 21-4710 and amendments thereto, the following shall apply in determining an offender's criminal history classification....

"(a) Every three prior adult convictions or juvenile adjudications of class A and class B person misdemeanors in the offender's criminal history, or any combination thereof, shall be rated as one adult conviction or one juvenile adjudication of a person felony for criminal history purposes."

The Court of Appeals reasoned that while K.S.A.1994 Supp. 21-4710 specifically refers to municipal ordinance violations, K.S.A.1994 Supp. 21-4711(a) does not expressly mention such violations. 24 Kan.App.2d at 95, 942 P.2d 42. It noted that the legislature knows how to amend the KSGA to include municipal ordinance violations in criminal history, and if it intended those violations to be subject to the aggregation rule it could have said so. 24 Kan.App.2d at 96, 942...

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