Opinion
Nos. 106,230 106,231.
2012-08-10
STATE of Kansas, Appellee, v. Dalton UPTON, Appellant.
Appeal from Sedgwick District Court, William Sioux Woolley, Judge. Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney, appellate division, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court, William Sioux Woolley, Judge.
Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney, appellate division, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., HILL, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Dalton Upton appeals the district court's finding that it did not have authority under K.S.A.2010 Supp. 21–4704(p) to grant his motion for probation. He also argues that the journal entry for one of his convictions did not match the sentence pronounced from the bench. Finally, he raises a challenge under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Between November 2009 and February 2011, Upton pled guilty in three cases.
09 CR 2462
In 2009, Upton pled guilty to seven counts of burglary of a business in violation of K.S.A. 21–3715(b) and three counts of theft in violation of K.S.A. 21–3701(a)(1), (b)(5). He was granted probation, with an underlying 51–month prison term.
10 CR 447
In 2010, while on probation in his earlier case, Upton pled guilty to possession of methamphetamine in violation of K.S.A.2008 Supp. 65–4160(a), possession of Clonazepam in violation of K.S.A.2008 Supp. 65–4162(a)(1), and driving while suspended in violation of K.S.A.2008 Supp. 8–262.
10 CR 3279
A few months later, in 2011, Upton pled guilty to two counts of felony theft in violation of K.S.A. 21–3701(a)(1), (b)(5).
Sentencing—10 CR 447 and 10 CR 3279
In April 2011, Upton was sentenced in the latter two cases. Pursuant to a plea agreement, the State recommended that Upton be granted probation in both cases. But the court questioned whether K .S.A.2010 Supp. 21–4704(p) prohibited it from granting probation in case 10 CR 3279.
K.S.A.2010 Supp. 21–4704(p) states, in relevant part:
“The sentence for a felony violation of K.S.A. 21–3701, and amendments thereto, when such person being sentenced has any combination of three or more prior felony convictions for violations of K.S.A. 21–3701, 21–3715 or 21–3716 and amendments thereto, or the sentence for a violation of K.S.A. 21–3715, and amendments thereto, when such person being sentenced has any combination of two or more prior convictions for violations of K.S.A. 21–3701, 21–3715 and 21–3716, and amendments thereto, shall be presumed imprisonment and the defendant shall be sentenced to prison as provided by this section, except that the court may recommend that an offender be placed in the custody of the secretary of corrections, in a facility designated by the secretary to participate in an intensive substance abuse treatment program.” (Emphasis added.)
The statute then lists the findings necessary to qualify a defendant for the drug treatment center option. K.S.A.2010 Supp. 21–4704(p). Upton did not request that such findings be made.
Both parties argued that the statute allowed the district court to grant Upton probation. The district court disagreed and denied probation in case 10 CR 3279 but imposed a mitigated 11–month presumptive prison sentence. In the other case, 10 CR 447, the court granted probation for 24 months. Upton appeals.
Jurisdiction
The State claims that we lack jurisdiction to hear Upton's claim that the district court erred in interpreting K.S.A.2010 Supp. 21–4704(p). The State relies on the fact that K.S.A.2010 Supp. 21–4704(p) provides: “The sentence under this subsection shall not be considered a departure and shall not be subject to appeal.” But the State concedes that we have found jurisdiction to hear appeals from a presumptive sentence when the appeal challenges a district court's legal conclusion regarding its authority under a statute. See, e.g., State v. Warren, 47 Kan.App.2d 57, Syl. ¶ 1, 270 P.3d 13 (2012); State v. Cisneros, 42 Kan.App.2d 376, 212 P.3d 246 (2009) (holding an appellate court has the authority to hear arguments that the district court was mistaken as to its statutory authority in denying further departure on a presumptive sentence). We agree with the rulings in Warren and Cisneros and find that we have jurisdiction over the limited claim that the district court incorrectly interpreted its authority under K.S.A.2010 Supp. 21–4704(p).
K.S.A.2010 Supp. 21–4704(p)—Case No. 10 CR 3279
Addressing Upton's claim on appeal requires us to interpret K.S.A.2010 Supp. 21–4704(p), an issues of statutory interpretation over which our review is unlimited. State v. Jolly, 291 Kan. 842, 845–46, 249 P.3d 421 (2011).
The intent of the legislature governs if such intent can be ascertained. In examining the statue we consider the language employed, giving ordinary words their ordinary meaning. If the statute is plain and unambiguous, that ends the matter and we do not resort to the various canons of statutory construction or to the legislative history of the statute. State v. Coman, 294 Kan. 84, 92, 273 P.3d 701 (2012).
Upton claims that K.S.A.2010 Supp. 21–4704(d) defines a K.S.A.2010 Supp. 4704(p) sentence as a presumptive sentence that allows the district court to grant a departure at its discretion. K.S.A.2010 Supp. 21–4704(d) states, in relevant part:
“The sentencing guidelines grid for nondrug crimes as provided in this section defines presumptive punishments for felony convictions, subject to judicial discretion to deviate for substantial and compelling reasons and impose a different sentence in recognition of aggravating and mitigating factors as provided in this act.”
This provision relates to the sentencing guidelines grid, which is part of K.S.A.2010 Supp. 21–4704 but which is not at issue in this case because it is not part of K.S.A.2010 Supp. 21–4704(p). This provision does not govern K.S.A.2010 Supp. 21–4704(p). Further, the specific provision within a statute controls over a general provision within the statute. See Golden v. Den–Mat Corp., 47 Kan.App.2d 450, 495, 276 P.3d 773 (2012). Here, subsection (p) is the specific provision and subsection (d) is the general provision, so (p) controls.
The plain language of K.S.A.2010 Supp. 21–4704(p) states that the district court must sentence a defendant with Upton's criminal history to prison, subject to an exception when there is a finding of substance abuse. Upton does not argue that the substance abuse exception applies.
Further, the rule of lenity does not apply. The rule requires us to interpret a statute in favor of the accused if there are two reasonable and sensible interpretations of a criminal statute. Coman, 294 Kan. at 96. Here, there is only one reasonable and sensible reading of the statute, and that is the clear and unambiguous words of the statute. Upton is not interested in being placed in the custody of the Secretary of Corrections in a facility designated by the Secretary for intensive substance abuse treatment. He wants probation. The statute does not permit that option. The district court was correct in so finding and in sentencing Upton to prison.
The Journal Entry—Case No. 10 CR 447
Next, Upton argues the district court's journal entry in case 10 CR 447 did not reflect the sentence pronounced from the bench. He requests that we remand with directions that the district court issue a nunc pro tunc order with the correct sentence.
While this appeal was pending, the district court issued an order nunc pro tunc correcting the clerical error. The order nunc pro tunc reflects the sentence pronounced from the bench. Therefore, this issue is now moot and must be dismissed. See State v. Johnson, 39 Kan.App.2d 438, 442–43, 180 P.3d 1084,rev. denied 286 Kan. 1183 (2008).
Apprendi v. New Jersey—Challenge
Finally, Upton argues that the district court violated his rights under Apprendi, 530 U.S. 466, when it took into account his prior convictions for sentencing purposes without proving them to a jury. Our Supreme Court has decided this issue adverse to Upton's position in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). We are bound to follow Ivory, See State v. Jones 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). This argument fails.
Affirmed in part and dismissed in part.