State v. Wiegand

• Decision Date: 30 May 2003
• Docket Number: No. 360, No. 87, No. 359, No. 361, No. 357, No. 358
• Citation: 275 Kan. 841,69 P.3d 627
• Parties: STATE OF KANSAS, Appellee, v. STEVEN W. WIEGAND II, Appellant.
• Court: Kansas Supreme Court

275 Kan. 841

69 P.3d 627

STATE OF KANSAS, Appellee, v. STEVEN W. WIEGAND II, Appellant.

Nos. 87,357, 87,358, 87,359, 87,360, 87,361

Supreme Court of Kansas

Opinion filed May 30, 2003.

Sarah Ellen Johnson, assistant appellate defender, argued the cause, and Steven R. Zinn, deputy appellate defender, was with her on the brief for appellant.

Amanda L. Norris, assistant county attorney, argued the cause, and Ellen Mitchell, county attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee. The opinion of the court was delivered by

LUCKERT, J.

This matter is before us for review of a Court of Appeals' decision remanding this case with directions to the trial court to consider placement of Steven Wiegand II in a Community Intermediate Sanction Center (CISC). State v. Wiegand, No. 87,357, unpublished opinion filed October 18, 2002.

Wiegand appealed the imposition of a prison sanction after his probation was revoked in several cases and he failed to successfully complete the Labette Correctional Conservation Camp (Labette). Wiegand argued the trial court erred in failing to consider placement in a CISC pursuant to K.S.A. 2002 Supp. 21-4603d(g). Wiegand also argued that the trial court had abused its discretion by refusing to hold a meaningful probation revocation hearing on April 30, 2001.

The Court of Appeals affirmed the trial court as to the issue of whether the trial court erred in not allowing a meaningful hearing, but reversed and remanded on the second issue with directions that the trial court consider placing Wiegand in a CISC. This court granted the State's petition for review of the CISC issue, but denied Wiegand's cross-petition for review of the meaningful hearing issue decided against him by the Court of Appeals.

We reverse the Court of Appeals and affirm the trial court's decision.

In 1997, Wiegand was sentenced in four cases. The controlling conviction in each case was burglary, a level 9 felony (K.S.A. 21-3715). Under the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq., the sentence range in each case fell within a grid box where the presumption of a nonprison sanction applied.

While on probation, Wiegand was convicted of criminal threat, a level 9 felony (K.S.A. 2002 Supp. 21-3419[a][1]). Again, a presumption of a nonprison sanction applied. On March 10, 2000, the trial court placed Wiegand on 24 months of intensive probation supervised by community corrections. Based upon his new conviction and failure to pay costs owed in the other cases, the State filed a motion to revoke Wiegand's probation in the four 1997 cases. After a hearing, the court ordered that Wiegand's probation be extended for 24 months based upon his new conviction. In November 2000, Wiegand's probation officer alleged Wiegand had committed 23 probation violations since being placed with community corrections in March 2000. At a hearing on November 30, 2000, Wiegand stipulated he had violated his probation. Wiegand requested he be sent to the Labette Correctional Conservation Camp where he had been accepted preliminarily. The court accepted the stipulation and deferred disposition of the matter until clearance was received from Labette. The court stated it would reexamine Wiegand's status "once he gets out of Labette."

Wiegand was discharged from Labette for numerous violations of rules. At a hearing conducted on April 30, 2001, the trial court noted Wiegand's previous stipulation to a violation of his probation and his failure to complete Labette. The trial court summarily revoked Wiegand's probation and ordered him to serve the original sentences imposed. No mention was made by the trial court or any party of the possibility of a placement in a CISC.

Thus, the issue before this court is whether the Court of Appeals erred in ruling that K.S.A. 2002 Supp. 21-4603d(g) required the trial court to consider placing Wiegand in a CISC before revoking his probation and sending him to prison. This issue turns upon the interpretation of K.S.A. 2002 Supp. 21-4603d(g); interpretation of a statute is a question of law over which this court's review is unlimited. State v. Engles, 270 Kan. 530, 532-33, 17 P.3d 355 (2001).

The relevant portion of K.S.A. 2002 Supp. 21-4603d(g) reads as follows:

"[P]rior to revocation of a nonprison sanction of a defendant whose offense is classified in the presumptive nonprison grid block of either sentencing guideline grid or [a border box], the court shall consider placement of the defendant in the Labette correctional conservation camp, conservation camps established by the secretary of corrections pursuant to K.S.A. 75-52,127, and amendment thereto or a community intermediate sanction center. Pursuant to this paragraph the defendant shall not be sentenced to imprisonment if space is available in a conservation camp or a community intermediate sanction center and the defendant meets all of the conservation camp's or a community intermediate sanction center's placement criteria unless the court states on the record the reasons for not placing the defendant in a conservation camp or a community intermediate sanction center."

Wiegand argued that this statute required the trial court to consider a CISC placement before revoking his probation. The Court of Appeals ruled: "The second sentence of K.S.A. 2001 Supp. 21-4603d(g) makes it clear that the legislature expected the district judge to consider each of the possible alternative nonprison possibilities." Wiegand, slip op. at 5. The Court of Appeals then remanded for the district court to consider placement of Wiegand in a CISC. Wiegand, slip op. at 5.

In seeking this court's review of that holding, the State pointed out that another Court of Appeals panel decided this issue differently in State v. Oster, 30 Kan. App. 2d 1135, 55 P.3d 364, rev. denied 275 Kan. 967 (2002). In Oster, the Court of Appeals ruled that K.S.A. 2002 Supp. 21-4603d(g) requires the trial court to consider either Labette, another conservation camp, or a CISC, but not all three. By considering Labette, the trial court satisfied the language of the statute. The court also noted that it would have been impossible for the trial court to consider placement in a CISC "whose very existence and location is unknown." Oster, 30 Kan. App. 2d at 1137, 55 P.3d at 365.

The State asks this court to resolve the split. The State urges the Oster interpretation of the statute and also argues that it cannot be error for the trial court to fail to consider placement in a CISC when none exists.

In his supplemental brief, Wiegand urges us to affirm the Court of Appeals. He first argues that the State is procedurally barred from arguing the Oster interpretation since it did not make that argument to the Court of Appeals. Instead, the State conceded that the statute required the trial court to consider placement in a CISC.

This court has recognized several exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal "where (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case; (2) questions are raised for the first time on appeal if consideration of the same is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the judgment of a trial court may be upheld on appeal although that court may have relied on the wrong ground or assigned a wrong reason for its decision. [Citations omitted.]" State v. Mincey, 265 Kan. 257, 267, 963 P.2d 403 (1998).

Here, at the time the State filed its appellate brief, the only precedent available to it was State v. Miller, 30 Kan. App. 2d 161, 41 P.3d 868 (2002), a case in which the Court of Appeals reached the same holding as in this case. Oster was decided months later, 1 week before the Court of Appeals panel in this case issued its decision.

The State's new reliance on Oster falls squarely within the exceptions listed in Mincey and, as a result, we will consider the statutory interpretation question and resolve the split between Miller and Oster.

Interpretation of K.S.A. 2002 Supp. 21-4603d(g)

The interpretation in Oster is a reasonable application of the first sentence of K.S.A. 2002 Supp....