Opinion
No. 109,064.
2013-07-12
In the Matter of O.U., D.O.B. XX/XX/1996, A Male.
Appeal from Lyon District Court; Merlin G. Wheeler, Judge. James Bordonaro, of Emporia, for appellant. Meghan K. Morgan, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Lyon District Court; Merlin G. Wheeler, Judge.
James Bordonaro, of Emporia, for appellant. Meghan K. Morgan, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., POWELL, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
O.U., a minor, was adjudicated as a juvenile offender for possession of cocaine, an offense which if committed by an adult would constitute a level 4 drug felony. He was sentenced as a chronic offender II, escalating felon pursuant to K.S.A.2011 Supp. 38–2369(a)(3)(B)(i). O.U. appeals to this court, arguing that he should have been sentenced as a chronic offender III, escalating misdemeanor pursuant to K.S.A.2011 Supp. 38–2369(a)(3)(C)(iii). We agree with O.U. and, accordingly, we vacate the sentence and remand to the district court for resentencing.
Facts
On July 16, 2012, O.U. was charged with possession of cocaine in violation of K.S.A.2010 Supp. 21–36a06(a) and possession of drug paraphernalia in violation of K.S.A.2010 Supp. 21–36a09(b)(2) stemming from events that occurred on April 28, 2012. On August 28, 2012, O.U. and the State reached a plea agreement whereby O.U. pled guilty to the first charge and the State dismissed the second. Also in accordance with the plea agreement, the State recommended an underlying Juvenile Correctional Facility (JCF) sentence be stayed, with O.U. remaining in Juvenile Justice Authority (JJA) custody.
A predisposition report was filed on September 18, 2012, that indicated O.U. had prior adjudications for battery, criminal trespass, possession of drug paraphernalia, and possession of hallucinogenic drugs. The report indicated that O.U.'s placement on the placement matrix was as a chronic offender II, escalating felon. O.U. was sentenced to 18 months in a juvenile correctional facility with 12 months' aftercare and that sentence was stayed, with O.U. remaining in JJA custody.
On October 9, 2012, O.U. filed a notice of appeal from the adjudication and sentencing. On October 25, 2012, the district court held a sentencing hearing. The court heard testimony from Chrysann Phipps, supervisor for judicial services at Lyon County Community Corrections. Phipps' responsibilities include the preparation of the predisposition reports, including determining where the juvenile falls on the placement matrix, which she has been involved with since it came into use in 2000. Phipps testified that, due to O.U.'s two prior misdemeanors and current felony adjudication, his criminal history placed him in the chronic offender II, escalating felon category, and was elevated past the escalating misdemeanant category because he did not have the two placement failures that were required for him to be in the chronic offender III category. Phipps further testified that when a juvenile is admitted to the juvenile correctional facility, Phipps, or her staff, has to provide the journal entries showing the juvenile has two placement failures for the juvenile to be admitted to the facility as an escalating misdemeanant.
Counsel for the offender argued that O.U. should be classified as a chronic offender III because the pertinent part of the sentencing statute, K.S.A.2011 Supp. 38–2369, could be read to mean that, in the alternative of having two misdemeanors, one could have a prior felony and two placement failures. The district court disagreed, ruling that this was a very special code with very specific language and the court should not interject an additional comma or use the word “or” in place of the word “and” in the last line of the chronic offender III definition. The district court affirmed O.U.'s classification of chronic offender II and sentenced him to a placement in the juvenile correctional facility for 18 months with 12 months' aftercare but stayed that sentence, with O.U. being ordered into JJA custody.
O.U. brings this appeal.
Analysis
Did the District Court Properly Classify O.U. as a Chronic Offender II Escalating Felon According to the Juvenile Offender Placement Matrix for Sentencing Purposes?
O.U.'s sole argument on appeal is that the district court misinterpreted the juvenile offender placement matrix statute.
Interpretation of a statute is a question of law over which appellate courts have unlimited review. In re Tax Appeal of Burch, 296 Kan. 713, 721, 294 P.3d 1155 (2013). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe the legislature's intent. Urban, 291 Kan. at 216.
As a general rule, appellate courts must strictly construe criminal statutes in favor of the accused. Any reasonable doubt as to the meaning of the statute is decided in favor of the accused, subject to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Coman, 294 Kan. 84, 96, 273 P.3d 701 (2012). “When the legislature allows two conflicting statutory provisions to coexist, the rule of lenity applies and the courts must follow the statutory provision more favorable to the accused.” State v. Turner, 293 Kan. 1085, Syl. ¶ 3, 272 P.3d 19 (2012).
O.U. was sentenced pursuant to K.S.A.2011 Supp. 38–2369(a)(3)(B)(i), which reads in pertinent part:
“(B) The chronic offender II, escalating felon is defined as an offender adjudicated as a juvenile offender for an offense which, if committed by an adult, would constitute:
(i) one present felony adjudication and either two prior misdemeanor adjudications or one prior person or nonperson felony adjudication.”
O.U argues that K.S.A.2011 Supp. 38–2369(a)(3)(C)(iii) is more appropriate to his situation. That section reads:
“(C) The chronic offender III, escalating misdemeanant is defined as an offender adjudicated as a juvenile offender for an offense which, if committed by an adult, would constitute:
(iii) one present severity level 4 drug felony adjudication and either two prior misdemeanor adjudications or one prior person or nonperson felony adjudication and two placement failures.”
O.U. was adjudicated for an offense which constituted a present severity level 4 drug felony, and his record establishes two prior misdemeanor adjudications but no prior placement failures. K.S.A.2011 Supp. 38–2369(a)(3)(B)(i) would be generally applicable to O.U.'s situation. However, section (B)(i) uses the generic term “felony” in referring to the present offense and makes no distinction between person, nonperson, or drug felonies. In contrast, K.S.A.2010 Supp. 38–2369(a)(3)(C)(iii) refers specifically to a present “severity level 4 drug felony.” Thus, on its face, section (C)(iii) would be applicable to O.U. if he otherwise meets the modifying criteria.
The district court held, in essence, that the requirement for “two placement failures” applied to both of the alternatives—“either” two prior misdemeanor adjudications “or” one prior person or nonperson felony adjudication. But contrary to the district court's observation that to rule otherwise would require the insertion of a comma in the last line, a more grammatical reading of the statute would suggest that unless there is a comma before the word “and” in the second alternative, which there is not, the phrase “two placement failures” modifies only the “or” alternative. Thus, we read K.S.A.2011 Supp. 38–2369(a)(3)(C)(iii) to set forth two distinct alternatives: “either” two prior misdemeanor adjudications “or” one prior person or nonperson adjudication and two prior placement failures. To read the statute otherwise would lead to the irreconcilable anomaly where, as here, O.U. was punished more severely simply because he lacked any prior placement failures.
O.U.'s current offense and his prior record would place him squarely within the first alternative under K.S.A.2011 Supp. 38–2369(a)(3)(C)(iii), requiring his classification as chronic offender III.
Even though O.U. would also fall within the description of chronic offender II under K.S.A.2011 Supp. 38–2369(a)(3)(B)(i), the rules of specificity and lenity would require the district court to apply the classification with the lesser punishment. See Turner, 293 Kan. 1085, Syl. ¶ 3.
The sentence imposed by the district court is, accordingly, vacated and the matter is remanded for resentencing.
Reversed and remanded.