Opinion
No. 109,210.
2013-10-18
STATE of Kansas, Appellee, v. Shawn David BOURGERIE, Appellant.
Appeal from Cowley District Court; James T. Pringle, Jr., Judge. Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. James R. Spring, deputy county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Cowley District Court; James T. Pringle, Jr., Judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. James R. Spring, deputy county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM.
When Shawn David Bourgerie committed and was convicted of failure to register as required by the Kansas Offender Registration Act (KORA), K.S.A. 22–4901 et seq. , his crime was a severity level 5 person felony. In this appeal from the district court's denial of his motion to correct illegal sentence, Bourgerie claims that the district court erred in refusing to apply retroactively the subsequent statutory amendment that lowered the severity level classification of the crime. Finding no error, we affirm.
Based on events that occurred in March 2010 and pursuant to a plea agreement, Bourgerie pled guilty in June 2010 to one count of failure to register as required by the KORA, in violation of K.S.A. 22–4904. At the time, K.S.A. 22–4903(a) designated a failure to comply with the KORA as a severity level 5 person felony. Considering Bourgerie's criminal history score of B, the presumptive standard sentence was 120 months' imprisonment. On July 29, 2010, the district court sentenced Bourgerie to 120 months' imprisonment but granted a dispositional departure to 36 months' probation.
Effective July 1, 2011, the Kansas Legislature amended K.S.A. 22–4903 to provide that a first conviction of violating the KORA is a severity level 6 person felony. See K.S.A.2011 Supp. 22–4903(c)(1)(A). On July 21, 2011, after Bourgerie admitted violating the terms of his probation, the district court revoked his probation and ordered him to serve the underlying 120–month prison sentence. Bourgerie did not argue for a reduced or modified sentence at his probation revocation hearing.
On March 27, 2012, Bourgerie filed a pro se motion to correct illegal sentence. In the motion, Bourgerie asserted that the amendment changing the designation of a first conviction of failure to register from a severity level 5 person felony to a severity level 6 person felony was retroactive and thus his sentence for the crime as a severity level 5 person felony was illegal. The district court summarily denied the motion, stating that the statute in effect at the time of Bourgerie's crime listed the offense as a severity level 5 person felony and that the amendment was not applicable retroactively. Bourgerie filed a motion to reconsider, which the district court also denied. Bourgerie timely appealed.
In his sole issue on appeal, Bourgerie contends again that the statutory amendment changing the severity level of his crime is retroactive. In support, Bourgerie cites a decision from the California Supreme Court regarding amended sentencing statutes and a Kansas Supreme Court case discussing the effect that legislative repeal of an ordinance has on pending prosecutions. The State responds by distinguishing both cases and emphasizing the long-standing general rule in Kansas that applicable penalty provisions are those in effect at the time the crime is committed.
When a district court summarily denies a motion to correct illegal sentence, Kansas appellate courts apply a de novo standard of review. State v. Trotter, 296 Kan. 898, 901, 295 P.3d 1039 (2013). Likewise, to the extent that this appeal requires statutory interpretation, it presents a question of law that also receives unlimited review. State v. Alonzo, 296 Kan. 1052, 1054, 297 P.3d 300 (2013).
K.S.A. 22–3504(1) provides that the court may correct an illegal sentence at any time. The Kansas Supreme Court has defined an illegal sentence as (1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in the character or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served. Trotter, 296 Kan. at 902. Bourgerie makes no claim that his sentence is illegal under this definition.
The statute in effect at the time of Bourgerie's crime listed the offense as a severity level 5 person felony. The State emphasizes the long-standing general rule in Kansas that applicable penalty provisions are those in effect at the time the crime is committed. See, e.g., State v. Malmstrom, 291 Kan. 876, 880, 249 P.3d 1 (2011) (“[W]e analyze a defendant's criminal conduct under the penalty parameters as of the date of the commission of the offense.”); State v. Dailey, 228 Kan. 566, 569, 618 P.2d 833 (1980) (“The penalty applicable to a crime is that which is provided by statute at the time the crime is committed.”).
Moreover, a statute operates prospectively unless its language clearly indicates a legislative intent to apply it retrospectively or the statutory change is procedural or remedial and does not prejudicially affect the parties' substantive rights. State v. Jaben, 294 Kan. 607, 612–13, 277 P.3d 417 (2012). Because the statute here is substantive, it can be applied retroactively only if the language of the amendment clearly indicates a legislative intent that it so apply. See State v. Stegman, 41 Kan.App.2d 568, 572, 203 P.3d 52 (2009) (substantive laws define criminal acts and prescribe punishments while procedural laws provide steps by which defendant is tried and punished). Bourgerie points to no language that would support finding such a legislative intent. To the contrary, the session laws state that the amendment to K.S.A. 22–4903 “shall take effect and be in force from and after its publication in the statute book.” (Emphasis added.) L.2011, ch. 95, sec. 15. Because there is no indication that the legislature intended the amendment to apply retroactively, it is only effective prospectively.
Bourgerie asserts an exception to the usual rule of prospective application and contends that he should receive the benefit of an ameliorative sentencing amendment. In support, he cites two cases: Sekt v. Justice's Court of San Rafael Township, 26 Cal.2d 297, 159 P.2d 17 (1945), and City of Kansas City v. Griffin, 233 Kan. 685, 664 P.2d 865 (1983). Both cases are distinguishable from the instant case as they examine the effect of legislative amendments on cases pending at the time the amendments went into effect. Griffin, 233 Kan. at 686–89;Sekt, 26 Cal.2d at 299–300, 307. In the instant case, the district court rendered final judgment prior to the date the amendment became effective. In Kansas, a final judgment has occurred when the defendant has been convicted and the district court has either pronounced sentence or suspended imposition of the sentence. State v. Howard, 44 Kan.App.2d 508, 511, 238 P.3d 752 (2010). Our Supreme Court has held that placing a defendant on probation does not affect the finality of judgment. State v. Pollard, 273 Kan. 706, 713, 44 P.3d 1261 (2002).
Here, the district court sentenced Bourgerie on July 29, 2010, and there is no indication in the record that Bourgerie pursued a direct appeal at that time. Thus, his sentence was final long before the amendment in question became effective on July 1, 2011. See L.2011, ch. 95, sec. 3 (effective date of amendment). We reject Bourgerie's argument that he should receive the benefit of an ameliorative sentencing amendment. See State v. Reese, 48 Kan.App.2d 87, 91, 283 P.3d 233 (2012) (rejecting defendant's argument that he should receive retroactive benefit of ameliorative sentencing amendment), petition for rev. filed September 4, 2012.
In summary, the district court did not err in finding that the changes in punishment for a first conviction of failure to register as required by the KORA do not apply retroactively. Bourgerie committed the crime prior to the effective date of K.S.A.2011 Supp. 22–4903, and the district court properly sentenced him according to the law in effect at the time of the commission of his crime. We conclude the district court did not err in denying Bourgerie's motion to correct illegal sentence.
Affirmed.