Opinion
No. 107,169.
2013-03-8
STATE of Kansas, Appellee, v. Christopher WILSON, Appellant.
Appeal from Pawnee District Court; Bruce T. Gatterman, Judge. Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Douglas W. McNett, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Pawnee District Court; Bruce T. Gatterman, Judge.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Douglas W. McNett, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM:
Christopher Wilson pled no contest to attempted possession of methamphetamine and unlawful possession of drug paraphernalia, both severity level 4 felonies. Both Wilson and the State requested a departure sentence that included mandatory drug treatment under K.S.A.2010 Supp. 21–4729, commonly referred to as S.B. 123. Wilson's presumptive sentence was prison, but the district court made the necessary findings under K.S.A.2010 Supp. 21–4729 in order to depart to 12 months' probation and to order up to 18 months of mandatory drug treatment.
Shortly after sentencing, the Kansas Sentencing Commission notified the court that based upon the holding in State v. Perry–Coutcher, 45 Kan.App.2d 911, 254 P.3d 556 (2011), funding was no longer available for mandatory drug treatment for defendants convicted of “attempted” possession crimes. The judge advised the parties:
“I do not believe that [Wilson's] sentence is now illegal, however the SB123 drug treatment will not be funded. K.S.A. 22–3504(2) provides that errors in the record arising from oversight or omission may be corrected by the Court at any time....
“I believe that the SB123 issue needs to be addressed.... The underlying sentence, probation, and required drug treatment would remain in place, it simply cannot be funded under the provisions of SB123.”
In response, the State moved for the court to review Wilson's sentence, claiming that his sentence was illegal based on Perry–Coutcher. At the hearing that followed, the district court concluded that Wilson's sentence should be changed to reflect the fact that he is not eligible for Senate Bill 123 treatment. Nevertheless, drug treatment remained a condition of Wilson's probation, and he was required to complete such a program at his own expense.
Wilson appeals. He claims that the district court erred in finding that he was ineligible for mandatory drug treatment under K.S.A.2010 Supp. 21–4729. This turns on the interpretation of a statute, a matter over which our review is unlimited. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
When a statute is plain and unambiguous, we will not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Only if the statute's language is unclear or ambiguous do we resort to the canons of construction or the statute's legislative history to determine the legislature's intent. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010).
In Perry–Coutcher, a panel of this court examined the language of K.S.A. 21–4729 and found no ambiguity. The court held that the mandatory drug treatment provided in K.S.A. 21–4729 did not apply to those convicted of attempted crimes because attempted crimes were not explicitly included in the language of the statute. 45 Kan.App.2d at 912; see State v. Horn, 288 Kan. 690, Syl. ¶ 2, 206 P.3d 526 (2009) (an attempt to commit a crime is a separate offense which is created and defined under K.S.A. 21–3301[a] ); State v. Knight, 44 Kan.App.2d 666, 681, 241 P.3d 120 (2010) (the separate crime of attempted possession of cocaine could not be used to convict a defendant of criminal possession of a firearm because it was not explicitly included within K.S.A. 21–4204[a][4][A] ), rev. denied 292 Kan. 967 (2011).
We adopt the court's analysis in Perry–Coutcher, 45 Kan.App.2d at 912–14. Although Wilson was not entitled to drug treatment paid for by the Sentencing Commission under K.S.A.2010 Supp. 21–4729, the district court had the authority to order alcohol and drug treatment at Wilson's expense as a condition of probation. See K.S.A. 21–4610. The district court did not err in the manner in which it corrected Wilson's sentence.
Affirmed.