Opinion
Nos. 105,897 105,898 105,899.
2012-06-22
STATE of Kansas, Appellee, v. Michael J. MADDEN, Appellant.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge. Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge.
Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., PIERRON and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Michael J. Madden appeals his sentences for possession of methamphetamine. He argues the district court erred by failing to order drug treatment and by using his prior adjudications and convictions to calculate his sentence without requiring the State to prove them to a jury.
In May 2009, Madden was charged with possession of methamphetamine, a severity level 4 drug felony in case No. 09 CR 2413. He was released on bond. In December 2009, he was charged with criminal possession of a firearm, a severity level 8 nonperson felony in case No. 09 CR 3882. In March 2010, Madden pled guilty in both cases, and his probation for misdemeanor escape from custody in case No. 08 CR 625 was revoked and reinstated. Again, he was released on bond. In May 2010, Madden was charged with possession of methamphetamine, criminal possession of a firearm, and possession of drug paraphernalia in case No. 10 CR 1923. In September 2010, he pled guilty in that case.
Madden's presentence investigation (PSI) reports revealed his relevant prior convictions, which earned him a criminal history score of E: 2005—possession of marijuana (K.S.A.65–4162); 2007—case No. 07 CR 2959, possession of methamphetamine (K.S.A.65–4160), criminal possession of firearm (K.S.A.21–4204), and possession of marijuana (K.S.A.65–4162) (This appears to be a previous Senate Bill 123 case. Madden was granted probation, but it was revoked and the underlying sentence was served. The PSI report incorrectly lists marijuana possession as a violation of K.S.A. 65–4160.); 2008—case No. 08 CR 625, escape from custody (K.S.A.21–3809) (Madden was granted probation, which was extended 6 months from completion of the 2007 sentence and revoked and reinstated in March 2010. The underlying sentence was consecutive to the 2007 sentence.); 2009—case No. 09 CR 2413, possession of methamphetamine (K.S.A.65–4160) and case No. 09 CR 3882—criminal possession of firearm (K.S.A.21–4204); 2010—case No. 10 CR 1923—possession of methamphetamine (K.S.A.21–36a06(a)(c)[1]; possession of paraphernalia (K.S.A.21–36a09(b)(2)(e)[3] ), and criminal possession of firearm (K.S.A.21–4204)
The PSI reports also indicated that Madden committed all of his current crimes while on probation in case No. 08 CR 625. In sum, case Nos. 09 CR 2413 and 10 CR 1923 called for presumptive probation, mandatory drug treatment, and application of the special rule, while case No. 09 CR 3882 called for presumptive probation and application of the special rule.
On October 28, 2010, the district court held a probation revocation and sentencing hearing. The court revoked Madden's probation in case No. 08 CR 625, due to his convictions in case No. 10 CR 1923, and imposed the underlying 6–month sentence. Then the court sentenced Madden to consecutive imprisonment terms: 20 months in case No. 09 CR 2413, 14 months in case No. 09 CR 3882, and 18 months in case No. 10 CR 1923 (18 for methamphetamine, 12 for paraphernalia, and 7 for firearm, to run concurrently). The three-sentence chain was to run consecutive to the 6–month sentence in case No. 105,897.
Honoring the plea agreements, the State recommended probation, and necessarily nonapplication of the special rule, in all three cases. Defense counsel argued that “Senate Bill 123 does override the special rule” and “the Court should allow [Madden] the opportunity to successfully complete probation.” The district judge disagreed:
“[THE COURT:] ... Mr. Madden ... with regard to the Senate Bill 123 treatment and the resources that are available, I will read the April 12, 2010 L–SIR evaluation that was prepared in contemplation of your sentencing.... This is 09 CR 2413, possession of methamphetamine, which would be the basis for the Senate Bill 123 treatment. Obviously the criminal possession of a firearm doesn't regard that.
“...' Mr. Madden had a previous Senate Bill 123 case and was granted probation. He violated and sentence was imposed. Mr. Madden was convicted of felony criminal possession of a firearm in ... 09 CR 3882....
“ ‘Mr. Madden now has a new felony possession of methamphetamine case pending before your court, [in] which he is expecting to be granted another chance at Senate Bill 123 services. He has been convicted of escape from custody. This offender is seen as not being appropriate for continued Senate Bill 123 placement or another chance at probation.... This offender has a history of non-compliance and public safety violations'....
“ ‘... Mr. Madden is seen as not being appropriate for any continued probation term. He has had all the community resources at his disposal and continues intentional non-compliance. He was placed on regular Community Corrections supervision and absconded. He was placed in Residential and absconded. His probation was revoked and sentence was imposed showing intentional non-compliance.’
...
“The bottom line is as long as Mr. Madden is out in the community on probation or on bond, he continues to commix new offenses.... He has committed crimes while on felony bond and, quite frankly, while on probation in 08 CR 625.
“The statute says while the presumption—that the court may incarcerate somebody even with presumed probation, with a special rule, and that is discretionary. ‘May’ incarcerate without a departure finding. The statute mandates that any sentence imposed shall be consecutive.
“ I intend to follow the statute, and because of the special rule I see no reason to place Mr. Madden any longer on probation. I have revoked him before. He has been sentenced to serve his time on other cases, and he has demonstrated ... a complete lack of motivation to be successful on probation.” (Emphasis added.)
Madden timely appeals his sentences.
Madden argues the district court was required to sentence him to drug treatment instead of imprisonment for his two methamphetamine possession convictions. The State contends he was ineligible for drug treatment due to his past drug treatment failure, current firearm conviction, and past methamphetamine possession convictions. Madden is not challenging his probation revocation or his prison sentences for firearm and paraphernalia possession.
Interpretation of sentencing statutes is a question of law over which the appellate court exercises unlimited review. State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009).
The resolution of this case turns on our application of two sentencing schemes: the special rule (K.S.A.21–4603d[f] ) and the drug treatment provisions (K.S.A.21–4603d(n), K.S.A. 21–4729, and K.S.A.2008 Supp. 21–4705[f] ).
The special sentencing rule, K.S.A. 21–4603d(f)(1) and (3), for crimes committed while on felony probation or bond states.
“When a new felony is committed while the offender is ... on probation ... for a felony, a new sentence shall be imposed pursuant to the consecutive sentencing requirements of K.S.A. 21–4608 ..., and the court may sentence the offender to imprisonment for the new conviction, even when the new crime of conviction otherwise presumes a nonprison sentence.” K.S.A. 21–4603d(f)(1).
“When a new felony is committed while the offender is on release for a felony ..., a new sentence may be imposed pursuant to the consecutive sentencing requirements ..., and the court may sentence the offender to imprisonment for the new conviction, even when the new crime of conviction otherwise presumes a nonprison sentence.” K.S.A. 21–4603d(f)(3).
Madden possessed methamphetamine in case No. 09 CR 2413 while he was on misdemeanor probation in case No. 08 CR 625. He again possessed methamphetamine in case No. 10 CR 1923 while he was on a misdemeanor probation in case No. 08 CR 625 and felony bond in case Nos. 09 CR 2413 and 09 CR 3882.
K.S.A. 21–4603d(n), the mandatory drug treatment sentence for defendants with qualifying conviction and criminal history, states:
“Except as provided by subsection (f) of K.S.A. 21–4705 ..., for felony violations of K.S.A 65–4160 or 65–4162 [K.S.A.2009 Supp. 21–36a06] ..., the court shall require the defendant who meets the requirements established in K.S.A. 21–4729 ... to participate in a certified drug abuse treatment program, as provided in K.S.A.2007 Supp. 75–52,144 [K.S.A.2009 Supp. 75–52,144].” K.S .A. 21–4603d(n).
In State v. Andelt, 289 Kan. 763, 774, 217 P.3d 976 (2009), the Kansas Supreme Court held that the drug treatment provisions are mandatory and trump the discretionary special rule on crimes committed while on felony probation or bond. See State v. Casey, 42 Kan.App.2d 309, 324, 211 P.3d 847 (2009).
K.S.A. 21–4729 states:
“(a) There is hereby established a nonprison sanction of certified drug abuse treatment programs for certain offenders who are sentenced on or after November 1, 2003. Placement of offenders in certified drug abuse treatment programs by the court shall be limited to placement of adult offenders, convicted of a felony violation of K.S.A. 65–4160 or 65–4162, [prior to such section's repeal or K.S.A.2009 Supp. 21–36a06]:
(1) Whose offense is classified in grid blocks 4–E, 4–F, 4–G, 4–H or 4–I of the sentencing guidelines grid for drug crimes and such offender has no felony conviction of K.S.A. 65–4142, 65–4159, 65–4161, 65–4163 or 65–4164, [prior to such section's repeal or K.S.A.2009 Supp. 21–36a03, 21–36a05 or 21–36a16]....
....
“(c) The sentencing court shall commit the offender to treatment in a drug abuse treatment program until determined suitable for discharge by the court but the term of treatment shall not exceed 18 months.”
Madden's methamphetamine possession convictions in case Nos. 09 CR 2413 and 10 CR 1923 were felony violations of K.S.A. 65–4160 and K.S.A.2009 Supp. 21–36a06, respectively. Because his criminal history score was E, his offenses were classified in grid block 4–E, and he had no felony convictions under the disqualifying statutes.
K.S.A.2008 Supp. 21–4705(f)(1) provides the following for defendants who have three qualifying convictions and are ineligible for drug treatment sentence:
“The sentence for a third or subsequent felony conviction of K.S.A. 65–4160 or 65–4162 [prior to such sections' repeal or K.S.A.2009 Supp. 21–36a06] ..., shall be a presumptive term of imprisonment and the defendant shall be sentenced to prison as provided by this section. Such term of imprisonment shall be served in a facility designated by the secretary of corrections in the custody of the secretary of corrections to participate in an intensive substance abuse treatment program.”
Madden's first methamphetamine possession in case No. 07 CR 2959 was a felony conviction of K.S.A. 65–4160. But his second marijuana possession in case No. 07 CR 2959 was a misdemeanor conviction of K.S.A. 65–4162. His second methamphetamine possession in case No. 09 CR 2413 was a felony conviction of K.S.A. 65–4160. His third methamphetamine possession in case No. 10 CR 1923 was a felony conviction of K.S.A.2009 Supp. 21–36a06.
Third-time offenders with a checkered drug treatment history are ineligible for treatment in prison under K.S.A.2008 Supp. 21–4705(f)(2):
“If the defendant has previously completed a certified drug abuse treatment program, as provided in K.S.A.2008 Supp. 75–52,144 ..., has been discharged or refused to participate in a certified drug abuse treatment program, as provided in K.S.A.2008 Supp. 75–52,144, ... such defendant's term of imprisonment shall not be subject to modification under paragraph (1)....”
The only evidence of Madden's drug treatment history was the report read at his current sentencing hearing. The report indicated that in his prior Senate Bill 123 case No. 07 CR 2959, his probation was revoked and his underlying sentence imposed.
Both of Madden's methamphetamine possession convictions are severity level 4 drug felonies, and his criminal history is E. The Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21–4701 et seq. , establishes an 18– to 22–month sentence of presumptive probation for a conviction of a severity level 4 drug felony with a criminal history score of E.
The district court incorrectly sentenced Madden in case No. 09 CR 2413. The special rule was inapplicable because Madden possessed methamphetamine while on misdemeanor—not felony—probation. See K.S.A. 21–4603d(f)(1). Compare K.S.A.2008 Supp. 21–4608(b) (sentence for crime committed while on misdemeanor probation to be served concurrent with or consecutive to underlying probation term) with K.S.A.2008 Supp. 21–4608(c) (sentence for crime committed while on felony probation to be served consecutive to underlying probation term).
Even if the special rule was applicable, the district court still should have sentenced Madden to drug treatment in case No. 09 CR 2413. First, drug treatment trumps the special rule. See Andelt, 289 Kan. at 774. Second, Madden met the drug treatment requirements. See K.S.A.2008 Supp. 21–4729. Third, the drug treatment exception was inapplicable. It was Madden's second—not third—qualifying felony conviction. See K.S.A.2008 Supp. 21–4705(0(1).
However, the district court correctly sentenced Madden in case No. 10 CR 1923. The special rule was applicable because Madden possessed methamphetamine while on felony bond. See K.S.A.2008 Supp. 21–4603d(0(3); see also K.S.A.2008 Supp. 21–4608(d) (sentence for crime committed while on felony bond in case No. 10 CR 1923 to be served consecutive to felony term in case Nos. 09 CR 2413 and 09 CR 3882). The court was free to sentence Madden to imprisonment under the special rule because the drug treatment exception was applicable—it was Madden's third qualifying felony conviction. K.S .A.2008 Supp. 21–4705(0(1).
This leaves Madden with drug treatment in case No. 09 CR 2413: 6–months' in case No. 08 CR 625; 14–months' in case No. 09 CR 3882; and 18–months' in case No. 10 CR 1923. The question we must answer is whether both drug treatment and imprisonment can be imposed in a multiple convictions case. State v. Sims, Nos. 104,406, 104,407, 2011 WL 3891878 (Kan.App.2011) (unpublished opinion), is instructive. A panel of this court held that the mandatory)' drug treatment provisions apply in multiple convictions cases where the primary crimes are drug possession convictions. 2011 WL 3891878, at *3–5. The Sims court reasoned.
“[T]he construction of K.S.A. 21–4729 to apply to multiple convictions cases does not lead to unreasonable results. See State v. Trautloff, 289 Kan. 793, 797, 217 P.3d 15 (2009). As previously discussed, the mandatory nonprison sanction of a certified drug treatment program will not apply to those offenders whose designated primary crime was not a drug possession offense. Moreover, because the operation of K.S.A. 21–4720(b) ensures that the primary crime will presume imprisonment whenever any of the crimes of conviction presume imprisonment, there will never be a situation in which an offender who otherwise would be sentenced to prison would bootstrap to the nonprison sanction through K.S.A. 21–4729. Thus, the ‘absurd results' that the State hypothesizes are unfounded. Finally, when an offender in a multiple convictions case does receive the mandatory nonprison sanction under K.S.A. 21–4729, the sentences of the other crimes for which he or she was convicted will still be accounted for and reflected as part of the underlying sentence.” 2011 WL 3891878, at *5.
This case is distinguishable from Sims. The primary crime in each of Sims' cases was methamphetamine possession, which carries a mandatory drug treatment sentence. 2011 WL 3891878, at *1. The primary crime in Madden's first case, No. 09 CR 2413, was methamphetamine possession, which carries a mandatory drug treatment sentence; however, the primary crime in his third case, No. 10 CR 1923, was his third methamphetamine possession conviction, which carries a presumptive prison sentence. So the question remains: Should Madden have been sentenced to drug treatment in case No. 09 CR 2413 and prison in 10 CR 1923?
The Court of Appeals has addressed the contemporaneous imposition of a prison sentence and probation in a variety of contexts. In State v. McDaniel, 20 Kan.App.2d 883, 885, 893 P.2d 290 (1995), the court found: “Probation is not inherently inconsistent with consecutive sentences” because if a defendant commits a crime while on felony bond, a court can impose the requisite consecutive sentences and then grant probation for both crimes. 20 Kan.App.2d at 885.
In State v. Benoit, 31 Kan.App.2d 591, 97 P.3d 497 (2003), after the defendant was convicted of a presumptive probation crime in one case and a presumptive prison crime in another case, the district court imposed concurrent prison sentences. The court held that “imprisonment in another case becomes a ‘substantial and compelling’ reason justifying departure.” 31 Kan.App.2d at 593. But departures for that reason have been consistently reversed in consecutive sentence cases. See State v. Cunningham, No. 101,282, 2010 WL 3211551, at *2 (Kan.App.2010) (unpublished opinion) (It is entirely possible for a defendant to serve a prison term in one case, followed by a term of presumptive probation in the other case to be served upon completion of the prison term.); see also State v. Peters, 2007 No. 94,913, WL 1747869, at *4 (Kan.App.2007) (unpublished opinion) (The unworkable arrangement of facts in Benoit are not present here because probation could have worked here subsequent to his county jail sentences.).
In this case, the district court properly exercised its discretion in refusing to reinstate probation in case No. 08 CR 625. The court found that Madden was not amenable to further probation. The court properly exercised its discretion in refusing to grant probation in case No. 09 CR 3882, Madden's nondrug conviction did not prevent application of the special rule. The court also properly refused to grant probation in case No. 10 CR 1923, albeit for the wrong reason. The court applied the special rule to impose the 18–month sentence, when it should have applied K.S.A.2008 Supp. 21–4705(f)(1). Madden's qualifying drug conviction barred application of the special rule, but because it was his third such conviction, it carried a presumptive prison sentence.
But the district court erred in refusing to grant drug treatment in case No. 09 CR 2413. The court applied the special rule to impose the 20–month sentence, when it was required to apply K.S.A. 21–4603d(n) and K.S.A. 21–4729. Madden's qualifying drug conviction barred application of the special rule, and because it was his second such conviction, it carried a mandatory drug treatment sentence. The fact that Madden was previously sentenced to drug treatment is irrelevant because there is no provision like K.S.A.2008 Supp. 21–4705(f)(2) (third-time offenders with checkered drug treatment history ineligible for treatment in prison) applicable to second-time offenders ( e.g., not entitled to second chance at drug treatment). McDaniel, Cunningham, and Peters contradict the State's assertion that probation following imprisonment in a consecutive sentence case is “illogical.”
Therefore, we reverse Madden's 20–month sentence in case No. 09 CR 2413 and affirm his 18–month sentence in case No. 10 CR 1923. Once Madden serves his 6 months' for escaping custody, 14 months' for firearm possession, and 18 months' for his third methamphetamine possession, he will have to complete drug treatment for his second methamphetamine possession or head back to prison to serve his underlying sentence.
Next, Madden argues that the district court violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it sentenced him to an increased sentence based upon his prior juvenile adjudications without requiring that the State prove them to a jury beyond a reasonable doubt. He acknowledges that the Kansas Supreme Court has already decided this issue against him in State v. Hitt, 273 Kan. 224, 229, 42 P.3d 732,cert. denied537 U.S. 1104 (2003). This court is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010). Our Supreme Court continues to reaffirm its precedent in this area. See State v. Fischer, 288 Kan. 470, 473–75, 203 P.3d 1269 (2009). Therefore, the district court did not violate Madden's constitutional rights at sentencing.
Finally, Madden argues the district court violated his constitutional rights under Apprendi when it sentenced him to an increased sentence based upon his prior conviction, without requiring that the State prove them to a jury beyond a reasonable doubt. He concedes that the Kansas Supreme Court has already decided this issue against him in State v. Ivory, 273 Kan. 44, 45–48, 41 P.3d 781 (2002). This court is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. Jones, 44 Kan.App.2d at 142. Our Supreme Court continues to reaffirm its precedent in this area. State v. Barnes, 293 Kan. 240, 265, 262 P.3d 297 (2011). Therefore, the district court did not violate Madden's constitutional rights at sentencing.
Affirmed in part and reversed in part.