State v. Whitaker
| Decision Date | 31 May 1996 |
| Docket Number | No. 74144,74144 |
| Citation | 260 Kan. 85,917 P.2d 859 |
| Parties | STATE of Kansas, Appellee, v. Donald WHITAKER, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Defendants taking the stand in their own defense who clearly lie under oath can have their sentences enhanced if that fact is relevant to the question of the defendants' individual capacity for rehabilitation. The record must show, either expressly or by implication, that the judge who enhances a defendant's sentence because of false testimony has found that the false testimony negatively affects the defendant's capacity for rehabilitation.
2. The fundamental rule for sentencing is that a person convicted of a crime is given the sentence in effect when the crime was committed. In those cases where a crime is committed prior to July 1, 1993, and sentencing occurs after that date, the sentencing court is required to impose a sentence as provided pursuant to law as the law existed prior to July 1, 1993.
3. In those cases where a crime is committed prior to July 1, 1993, and sentencing occurs after that date, the sentencing judge is required to compute a guidelines sentence by looking at actual conduct and by applying the actual acts committed to the comparable crime in effect after July 1, 1993. Any uncontested information may be considered to determine what the actual conduct of the offender was.
Mary D. Prewitt, Special Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief, for appellant.
Charles R. Reimer, Assistant District Attorney, argued the cause, and Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, were with him on the brief, for appellee.
Defendant was convicted of two counts of kidnapping and one count each of aggravated robbery, attempted aggravated robbery, and aggravated battery against a law enforcement officer. He was sentenced to a controlling term of 20 years to life. In State v. Whitaker (Whitaker I ), 255 Kan. 118, 872 P.2d 278 (1994), the convictions were affirmed and the sentences were vacated. Upon resentencing, the same sentences were imposed. This is Whitaker's appeal from the resentencing. Whitaker now argues the sentencing judge failed to follow this court's mandate when resentencing him and erred in computing the severity level of his conviction for aggravated battery against a law enforcement officer under the Kansas Sentencing Guidelines Act (KSGA). A detailed summary of the facts is not necessary to the issues on appeal.
In Whitaker's first appeal, he complained that the trial court enhanced his sentence because he had given false testimony at trial. The Whitaker court held that the fact a defendant gave false testimony at trial is an appropriate sentencing consideration, but only if the sentencing judge finds that it negatively affects the defendant's capacity for rehabilitation.
The district judge, when originally sentencing Whitaker, stated he had received and reviewed the presentence investigation report and he noted the sentencing factors of K.S.A. 21-4606. There was no substantial prior criminal history. The judge observed that Trotter and Carr suffered significant emotional harm. He pointed out that Officer Taylor could have been killed in the gunfire. The judge recognized that although Whitaker was not the person who fired the weapon at Officer Taylor, injury was a foreseeable consequence of Whitaker's acts. After discussing the sentencing factors, the judge stated:
" " 255 Kan. at 135-36, 872 P.2d 278.
The judge sentenced Whitaker to a controlling sentence of 20 years to life.
In evaluating Whitaker's claim that the district judge erred in enhancing his sentence on the basis that the judge thought he gave false testimony during the trial, the Whitaker I court noted that a similar issue was raised in a Court of Appeals case, State v. Manzanares, 19 Kan.App.2d 214, 866 P.2d 1083 (1994). We observed that in affirming Manzanares' sentence, imposed in part because the defendant denied culpability for his actions, the Court of Appeals relied on People v. Ward, 113 Ill.2d 516, 101 Ill.Dec. 834, 499 N.E.2d 422 (1986), which in turn had relied on United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978).
In Grayson, the United States Supreme Court noted that a defendant's truthfulness while testifying on his own behalf has been deemed probative of his attitudes toward society and his prospects for rehabilitation and hence relevant to sentencing. 438 U.S. at 50, 98 S.Ct. at 2615. It observed that defendants have a right to testify in their own behalf, but they do not have a right to testify falsely. 438 U.S. at 54, 98 S.Ct. at 2617-18. The Grayson Court did not hold that sentences could be automatically enhanced if the defendant's testimony is deemed false. However, a sentencing judge has the authority to evaluate carefully a defendant's testimony, determine whether that testimony contained willful and material falsehoods, and, if so, assess in light of all the other knowledge gained about the defendant the meaning of that conduct with respect to the defendant's prospects for rehabilitation and restoration to a useful place in society. 438 U.S. at 55, 98 S.Ct.at 2618.
In Whitaker I, we observed that the sentencing judge's comments showed he applied Grayson. The problem in applying Grayson was not so much whether, and to what extent, Whitaker lied on the stand but whether the sentencing judge carefully considered whether the false testimony, in light of other knowledge available to the trial court, affected Whitaker's capacity for rehabilitation. We stated:
255 Kan. at 138-39, 872 P.2d 278.
We also acknowledged that it is the sentencing judge alone who determines the appropriate sentence or other disposition of the case by exercising his or her best judgment, common sense, and judicial discretion after considering all of the reports, the defendant's background, the facts of the case, and the public safety. Because we were unable to determine from the sentencing transcript if the district judge carefully considered, or failed to consider, the impact Whitaker's false testimony had on his capacity for rehabilitation, we vacated Whitaker's sentences and remanded for resentencing, instructing the district judge to consider the impact of Whitaker's false testimony on his capacity for rehabilitation. 255 Kan. at 139, 872 P.2d 278.
At the resentencing hearing Whitaker, in an effort to mitigate the possible sentence to be imposed, stressed the progress he had made in prison, including education and training, and asked that a sentence of 10 to 40 years be imposed. The State renewed its original request for a sentence of 65 years to life. After hearing argument, the judge reimposed the 20-to-life sentence. He gave a detailed explanation for imposing that sentence. The judge reiterated that Whitaker had fabricated his testimony at trial. As to how that fact negatively affected Whitaker's capacity for rehabilitation, the trial judge stated:
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