State v. Wilson, 52243
| Decision Date | 08 May 1981 |
| Docket Number | No. 52243,52243 |
| Citation | 6 Kan.App.2d 302,627 P.2d 1185 |
| Parties | STATE of Kansas, Appellee, v. Michael J. WILSON, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. Enhancement of the sentence of a defendant as a third offender under K.S.A. 1980 Supp. 21-4504(2) requires that each succeeding offense be committed after conviction for the preceding offense.
2. In a criminal action, it is held (1) inclusion of an Allen -type instruction (PIK Crim. 68.12) among the instructions given prior to jury deliberation was not erroneous; and (2) under the facts, the enhanced sentencing of defendant as a third offender was erroneous.
Milo M. Unruh, Jr., of Arn, Mullins, Unruh, Kuhn & Wilson, Wichita, for appellant.
Jack Peggs, Asst. Dist. Atty., Vern Miller, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.
Before REES, Judge Presiding, Miller, Justice and STEVEN P. FLOOD, District Judge, Assigned.
Defendant appeals from jury convictions of burglary (K.S.A. 21-3715) and felony theft (K.S.A. 1980 Supp. 21-3701) and the sentences imposed.
Defendant claims error in the inclusion of an Allen -type instruction (PIK Crim. 68.12) among the instructions given prior to jury deliberation. There was no trial objection. The question is whether the giving of the instruction was clearly erroneous. Kiser v. Gilmore, 2 Kan.App.2d 683, 691, 587 P.2d 911 (1978), rev. denied 225 Kan. 844 (1979). Although there are old and recent cases finding error in the giving of an Allen -type instruction after jury deliberation has begun, e. g., State v. Bybee, 17 Kan. 462, 465 (1877); State v. Hammond, 4 Kan.App.2d 643, 648, 609 P.2d 1171, rev. denied 228 Kan. --- (1980), use of the instruction is not error per se. When it is included as one of the instructions given prior to jury deliberation, the inherent danger of coercion is dissipated if not lost. State v. Scruggs, 206 Kan. 423, 425-426, 479 P.2d 886 (1971). In this case, where defendant relies upon nothing of record other than the giving of the instruction, we cannot conclude there was clear error.
A two-fold attack is lodged by defendant against the severity of the sentences imposed by the trial judge. Defendant first argues the sentences and his commitment to the custody of the secretary of corrections as recited by the sentencing hearing transcript and journal entry fail to comply with the requirement of K.S.A. 1979 Supp. 21-4603(3) that the trial court state the "reasons for imposing the sentence as ordered." To emphasize the need for compliance with the cited statutory requirement, defendant refers us to the companion opinions in State v. Buckner, 223 Kan. 138, 574 P.2d 918 (1977), and State v. Coe, 223 Kan. 153, 574 P.2d 929 (1977). In those cases, the Supreme Court found insufficient trial court enunciation of reasons for imposition of the sentences ordered; appellate review led to determination the trial court abused its discretion.
Defendant's complaint of noncompliance with K.S.A. 1979 Supp. 21-4603(3) is of no avail. The relied upon requirement was repealed by statutory amendment effective April 24, 1980. L.1980, ch. 104, § 1. Defendant was sentenced in this case on May 27, 1980. The statutory requirement was not in effect. When defendant was sentenced and committed to the custody of the secretary of corrections, inclusion of "a statement of reasons for imposing the sentence as ordered" was permissive or optional, not mandatory. K.S.A. 1980 Supp. 21-4620(b).
The essence of the second prong of defendant's attack upon the sentences imposed is that under the evidence presented, it was improper to sentence him as a third offender. We find merit in defendant's position.
The sentences arise out of convictions on April 29, 1980, for burglary and felony theft committed December 10, 1979. They were enhanced under the habitual criminal act (K.S.A. 1980 Supp. 21-4504(2)). The State's evidence introduced in support of sentence enhancement establishes that on August 10, 1977, defendant was convicted in the Barton County District Court on a charge of felony theft committed May 29, 1977. The evidence also establishes that on December 20, 1977, defendant was convicted in Ellsworth County District Court on a charge of forgery; the date of commission of that offense is not shown. Under the evidence, when the defendant committed the felony offenses for which he stands convicted in this case, he had previously been convicted of two felonies. On this evidence, the trial judge "tripled" defendant's sentences; each of the two sentences was a term of not less than seven years nor more than thirty years; they were ordered to run consecutively and consecutive to any parole revocation that might be ordered. There is no proof that when he committed the felony theft in Barton County he had previously been convicted of a felony. There is no proof that when he committed the forgery in Ellsworth County he had previously been convicted of a felony the date of commission of the forgery offense may have been either prior or subsequent to the Barton County conviction.
Our habitual criminal act (K.S.A. 1980 Supp. 21-4504) provides in material part:
Over a century later, State v. Lohrbach, 217 Kan. 588, 538 P.2d 678 (1975), was decided. There, as disclosed by the opinion, the record on appeal and the appellate briefs, the defendant's sentences for convictions on July 11, 1973, of three felony offenses committed April 11, 1973, were enhanced upon evidence of convictions on November 23, 1965, in four cases charging a total of seven felony offenses two committed April 3, 1965, and apparently growing out of a single act; two committed April 23, 1965, and apparently growing out of a single act, two committed October 7, 1965, and apparently growing out of a single act; and one committed October 7, 1965, but apparently not growing out of the same act as that out of which the other two offenses committed that same date arose. It was held Lohrbach was subject to sentence only as a second offender.
Each of the four cases in which Lohrbach was convicted on November 23, 1965, concerned offenses growing out of separate single acts. Consonant with the statement in State v. Murray, 200 Kan. 526, 530, 437 P.2d 816 (1968), that because two offenses grow out of a single act the actor has not become an habitual offender, the seven convictions were treated as four convictions obtained on the same date.
Aside from resolution of an evidentiary issue, the essential holding in Lohrbach is that multiple convictions obtained on the same date can be used only as a single conviction for the purpose of sentence enhancement under K.S.A. 1980 Supp. 21-4504. 217 Kan. at 593, 538 P.2d 678. The Supreme Court found support in State v. Murray, 200 Kan. 526; State v. Felton, 194 Kan. 501, 399 P.2d 817 (1965); State v. Ricks, 173 Kan. 660, 250 P.2d 773 (1952); State v. Close, 130 Kan. 497, 287 P.2d...
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