Lаrcy Gervease Bee, Jr., seeks review of a published opinion by the Kansas Court of Appeals affirming the sentence imposed following the revocation of his probation without consideration of nonprison sanctions.
On July 14, 2003, the State filed a complaint/information charging Bee with one count of possession of methаmphetamine in violation of K.S.A. 65-4160(a), one count of violating drug tax stamp requirements in violation of K.S.A. 79-5204, one count of possessing marijuana in violation of K.S.A. 65-4162(a)(3), one count of possession of drug
On June 14, 2004, the State filed a motion to revoke Bee’s probation, alleging his failure to report to his intensive supervision officer (ISO), failurе to enter inpatient treatment, and continued marijuana and methamphetamine use. On September 13, 2006, the State filed an amended motion to revoke Bee’s probation, alleging violation of the conditions of his probation. At the revocation hearing, Bee’s ISO testified that Bee never entered a drug treatment progrаm, that he repeatedly failed to report to the ISO director, that he failed to pay any court costs and other costs, that he failed to report for a scheduled in-patient drug treatment, and that he tested positive for marijuana and amphetamines. On September 18, 2006, the district court revoked his probation and ordеred him to serve the underlying sentence. The district court did not consider on the record alternative nonprison sanctions, such as the Labette Correctional Conservation Camp (Labette). Bee filed a timely notice of appeal.
The Court of Appeals affirmed the revocation and sentence in
State v. Bee,
This appeal seеks resolution of an apparent conflict between two statutory provisions relating to imposition of nonprison sanctions. One provision requires consideration of a conservation camp or a community intermediate sanction center before revoking probation. The other provision mandates imposition of an underlying prison sentence upon a finding of failure to comply with a court-ordered drug abuse treatment program.
Interpretation of a sentencing statute is a matter of law, and the standard of review is unlimited.
Abasolo v. State,
K.S.A. 2003 Supp. 21-4603d(g) requires in relevant part:
“[P]rior to revocation of a nonprison sanction of a defendant whose offense is classified in grid blocks 4-E or 4-F of the sentencing guideline grid for drug crimes and whose offense does not meet the requirements ofKS.A. 2003 Supp. 21-4729, and amendments thereto, or prior to revocation of a nonprison sanction of a defendant whose offense is classified in the presumptive nonprison grid block of either sentencing guideline grid . . ., the court shall consider placement of the defendant in the Labette correctional conservation camp, consеrvation camps established by the secretary of corrections . . . or a community intermediate sanction center. Pursuant to this paragraph the defendant shall not be sentenced to imprisonment if space is available in a conservation camp or a community intermediate sanction center and the defеndant meets all of the conservation camp’s or a community intermediate sanction center’s placement criteria unless the court states on the record the reasons for not placing the defendant in a conservation camp or a community intermediate sanction center.” (Emphasis added.)
Our courts hаve construed the statutory language “shall consider placement” to be mandatory. See,
e.g., State v. Wiegand,
In 2003, the Kansas Legislature enacted K.S.A. 2003 Supp. 21-4729 (often referred to
“(1) Offenders in drug abuse treatment programs shall be discharged from such program if the offender:
(A) Is convicted of a new felony, other than a felony conviction of K.S.A. 65-4160 or 65-4162, and amendments thereto; or
(B) has a pattern of intentional conduct that demonstrates the offender’s refusal to comply with or participate in the treatment program, as established by judicial finding.
“(2) Offenders who are discharged from such program shall be subject to the revocation provisions of subsection (n) of K.S.A. 21-4603d, and amendments thereto.”
K.S.A. 2003 Supp. 21-4603d(n) reads in relevant part:
“Except as provided by subsection (f) of K.S.A. 21-4705, and amendments thereto, in addition to any of the above, for felony violations of K.S.A. 65-4160 or 65-4162, and amendments thereto, the court shall require the defendant who meets thе requirements established in K.S.A. 2003 Supp. 21-4729, and amendments thereto, to participate in a certified drug abuse treatment program, as provided in K.S.A. 2003 Supp. 75-52, 144, and amendments thereto, including but not limited to, an approved after-care plan. If the defendant fails to participate in or has a pattern of intentional conduct that demonstrates the offenders refusal to comply with or participate in the treatment program, as established by judicial finding, the defendant shall be subject to revocation of probation and the defendant shall serve the underlying prison sentence as established in K.S.A. 21-4705, and amendments thereto. For those offenders who are convicted on or after the effective date of this act, upon completion of the underlying prison sentence, the defendant shall not be subject to a period of postrelease supervision." (Emphasis added.)
K.S.A. 2003 Supp. 22-3716(f) provides:
“Offenders who have been sentenced pursuant to K.S.A. 2003 Supp. 21-4729, and amendments thereto, and who subsequently violate a condition of the drug and alcohol abuse treatment program shall be subject to an additional nonprison sanction for any such subsequent violation. Such nonprison sanctions shall include, but not be limited to, up to 60 days in a county jail, fines, community service, intensified treatment, house arrest and electronic monitor.”
In determining whеther a conflict among these statutory sections exists and how to resolve any such conflicts, it is helpful to consider certain fundamental principles of statutory interpretation.
The principal rule governing interpretation of statutes is that the legislature’s intent governs if this court can ascertain that intent. The court presumеs that the legislature expressed its intent through the language of the statutory scheme.
In re Adoption of G.L.V.,
As a general rule, this court strictly construes a criminal statute in favor of the accused, which simply means that the court reads wоrds with their ordinary meaning. The court decides any reasonable doubt about a word’s meaning in favor of the accused.
State v. Kleypas,
In order to ascertain the legislative intent underlying particular statutory provisions, this court must give effect, if possible, to the
entire act. It is our duty, so far as practicable, to reconcile different provisions so as to make them consistent, harmonious, and sensible.
In re Adoption of G.L.V.,
This court presumes that the legislature acted with full knowledge and information about the statutoiy subject matter, prior and existing law, and the judiciаl decisions interpreting the prior and existing law and legislation. In the same vein, we also presume that when the legislature revises an existing law, it intends to change the law that existed prior to the amendment.
In re Adoption of G.L.V.,
Keeping these principles in view, the apparent conflicts among the statutory sections are subject to resolution. Althоugh the language is not transparent, a close reading of. the plain language of the various statutoiy provisions clarifies the requirements imposed on sentencing courts.
In the absence of other statutes, K.S.A. 2003 Supp. 21-4603d(g) would require the sentencing court to consider placement in Labette. K.S.A. 2003 Supp. 21-4729(f) states, however, that offеnders shall be discharged from drug treatment programs if they exhibit a pattern of intentional conduct demonstrating refusal to comply with the programs and discharged offenders shall be subject to revocation under K.S.A. 2003 Supp. 21-4603d(n). K.S.A. 2003 Supp. 21-4603d(n) likewise states that a judicial finding of failure to comply with or participate in a treatment program shall subjeсt the defendant to revocation of probation and the defendant shall serve the underlying prison sentence.
The statutory language “shall” generally represents a mandatoiy course of conduct. See,
e.g., State v. Drayton,
A judicial finding established that Bee had a pattern of intentional conduct demonstrating his refusal to comply with or participate in the treatment program. The district court was therefore required to discharge him from the drug treatment program, and K.S.A. 2003 Supp. 21-4729(f)(2) made Bee subjeсt to K.S.A. 2003 Supp. 21-4603d(n). But even without a formal discharge, K.S.A. 2003 Supp. 21-4603d(n) required the district court to revoke Bee’s probation and to order him to serve his underlying sentence.
Although the plain language of K.S.A. 2003 Supp. 21-4603d(n) and K.S.A. 2003 Supp. 21-4729(f) appear to be in conflict with the more general requirement of K.S.A. 2003 Supp. 21-4603d(g) relating to considering Labette, two principles of statutory construction resolve that conflict. First, the drug treatment sanction constitutes a more specific phase of the nonprison sentence scheme than the requirement that the court consider Labette in both drug and nondrug cases, and the more specific statute controls. See
Williams,
Bee argues that K.S.A. 2003 Supp. 22-3716(f) is inconsistent with mandatory imposition of the underlying sentence. K.S.A. 2003 Supp. 22-3716(f) calls for additional nonprison sanctions for offenders who violate a condition of the drug treatment program. The plain language of this statutory provision does not, however, conflict with the plain language of K.S.A. 2003 Supp. 21-4603d(n) and K.S.A. 2003 Supp. 21-4729(f). K.S.A. 2003 Supp. 22-3716(f) provides for additional nonprison sanctions for violating a condition of the drug and alcohol program. This allows courts to address instances of fading to fulfill program requirements, which differs from the conduct sanctioned by K.S.A.
The legislative scheme provides that an offender whо may be resistant or makes mistakes while in a treatment program may continue in the program but may be subject to nonprison sanctions, such as jail time, fines, community service, intensified treatment, house arrest, or electronic monitoring as incentives to complete the program successfully. An offender sentenced pursuant tо K.S.A. 21-4729 who, like Bee, totally fails to participate in the treatment program is subject to immediate imposition of the underlying prison sentence. The statute is clear that once the district court has made the requisite finding of intentional conduct of refusing to participate in drug treatment program, placement in the Labettе is not a required consideration or, in most cases, a viable option for prompting successful completion of a drug treatment program and is not a substitute for imposition of the underlying prison sentence.
Bee argues that he was never discharged from the drug abuse treatment program and was therefore not subject to mandatory service of his sentence. K.S.A. 2003 Supp. 21-4603d(n) does not require discharge from a treatment program, however; it requires only a judicial finding that the defendant failed to participate in the treatment program or engaged in a pattern of intentional conduct demonstrating a refusal to comply with or participate in the program.
The State summarily dismisses the entire basis of Bee’s appeal, contending that K.S.A. 2003 Supp. 21-4603d(g), which addresses consideration of Labette, specifically excludes those drug offenses governed by K.S.A. 2003 Supp. 21-4729. A close reading of the relevant part of K.S.A. 2003 Supp. 21-4603d(g) reveals, however, that the legislature distinguished between two diffеrent types of offenses. That statute requires consideration of Labette “prior to revocation of a nonprison sanction of a defendant . . . whose offense does not meet the requirements of K.S.A. 2003 Supp. 21-4729,” or consideration of Labette “prior to revocation of a non-prison sanction of a defendant whose offense is classified in the presumptive nonprison grid block of either sentencing guideline grid.”
Bee falls in the latter category: his offense was classified in the presumptive nonprison grid block of the drug sentencing guideline grid. The word “or” is generally to be read as a disjunctive rather than a conjunctive. See,
e.g., State v. Thomas;
Finally, at oral argument, counsel for appellant expanded the issue by maintaining that the phrase “in addition to any of the above” contained in 21-4603d(n) resolves any conflict as to whether consideratiоn of21-4603d(g) is required.
State v. Preston,
Reading the plain language of the nonprison sanction scheme as a whole, together with rules relating to reading specific provisions ahead of general provisions, leads to the conclusion that die district court was not required to consider the Labette option. In fact, the statutoiy scheme precludes consideration of Labette when an of fender is sentenced pursuant to K.S.A. 21-4729 and the sentencing court determines that the offender has a pattern of intentional conduct that demonstrates a refusal to comply with or participate in a drug treatment program.
Affirmed.