Opinion
No. 107,923.
2013-06-7
STATE of Kansas, Appellee, v. John Henry CARTER, Sr., Appellant.
Appeal from McPherson District Court; Joe Dickinson, Judge. Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. Gary L. Foiles, deputy county attorney, David Page, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from McPherson District Court; Joe Dickinson, Judge.
Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. Gary L. Foiles, deputy county attorney, David Page, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., McANANY and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
John H. Carter, Sr., challenges the district court's denial of his request to serve his fifth DUI sentence under house arrest rather than in jail. We affirm the district court, finding it correctly denied Carter's request because the court lacked authority to order house arrest under K.S.A.2010 Supp. 8–1567(g)(1).
Carter pleaded no contest to and was convicted of his fifth DUI offense. At the sentencing hearing, Carter requested the district court allow him to serve his 90–day sentence under house arrest because he might risk losing his disability benefits if he was ordered to serve his sentence in jail. Following K.S.A.2010 Supp. 8–1567(g), the district court denied Carter's request, explaining the statute did not provide house arrest as an option. The court ordered Carter to serve 90 days in jail with 12 months' postrelease supervision.
Interpretation of a sentencing statute is a question of law, and the standard of review is unlimited. State v. Mason, 294 Kan. 675, 676, 279 P.3d 707 (2012).
Carter argues it was somehow unreasonable for the district court to sentence him to serve the time in jail because he was willing to submit to house arrest and such a sentence would have eliminated the risk of losing his disability benefits. Unfortunately for Carter, his complaint should be directed to the legislature as K.S.A.2010 Supp. 8–1567(g) simply does not allow for the option he seeks.
The statute in effect on the date of Carter's offense and, therefore, the statute governing the sentencing, was K.S.A.2010 Supp. 8–1567(g)(1). This statute contains no provision for house arrest as an alternative to jail, unlike K.S.A.2010 Supp. 8–1567(f)(1), the provision for those with only three DUI convictions, which states in relevant part:
“ The court may place the person convicted under a house arrest program pursuant to K.S.A. 21–4603b, and amendments thereto, to serve the remainder of the minimum sentence only after such person has served 48 consecutive hours' imprisonment.” (Emphasis added.)
K.S.A.2010 Supp. 8–1567(f)(1) specifically authorizes a court to order house arrest whereas section (g)(1) does not contain this language. “When statutory language is plain and unambiguous, there is no need to resort to statutory construction.” Shrader v. Kansas Dep't of Revenue, 296 Kan. 3, 9–10, 290 P.3d 549 (2012). Based on the differences of language between K.S.A.2010 Supp. 8–1567(f)(1) and (g)(1), we presume the legislature intended to permit house arrest for third-time DUI offenders but purposely omitted the same option for offenders on their fourth or subsequent conviction. See State v. Thompson, No. 102,636, 2010 WL 3732022, at *2 (Kan.App.2010) (unpublished opinion); State v. Rauch, No. 98,282, 2008 WL 3367603, at *3 (Kan.App.2008) (unpublished opinion).
Therefore, we hold that the district court correctly denied Carter's request for house arrest because the district court lacked authority to order house arrest under K.S.A.2010 Supp. 8–1567(g)(1).
Affirmed.