State v. GilleyState v. Gilley
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- Before:
- Davis
The opinion of the court was delivered by
Davis, C.J.:
Deanna Gilley was convicted of three counts for forgery. Relying on two prior forgery convictions, the district court sentenced her for a third forgery conviction under the progressive sentencing scheme set forth in
Facts
Upon complaint filed in Reno County in case No. 07 CR 297, Gilley was charged with three counts of forgery under the provisions of
It is apparent from the record that the State, the defendant, and the district court treated each of the three counts in the complaint as a third forgeiy conviction, requiring the defendant “to serve at least 45 days’ imprisonment as a condition of probation, and a fine the lesser of the amount of the forged instrument or $2,500.”
The defendant had three prior forgery convictions in case No. 06 CR 678 on December 1, 2006. Based upon her current forgery convictions and her three prior felony forgery convictions, the pre-sentence investigation report identified her criminal histoiy as category E based upon counting four nonperson felony forgeiy convictions. The defendant objected, claiming that two of her 2006 forgeiy convictions were used to elevate Count 1 in her present case to a third forgeiy conviction under
The district court agreed and modified her criminal history from categoiy E (three or more nonperson felonies) to category G (one nonperson felony). The trial court rejected the State’s argument that the mandatory 45 days in jail as a condition of probation did not enhance the penalty under Count 1 and also rejected the argument that her present three forgeiy convictions could serve as a justification for treating her convictions in the present case as third or subsequent convictions.
On the State’s appeal, the Court of Appeals determined that Gilley’s three forgery convictions were sufficient to warrant the *34 district court sentencing her as a person with a third forgery conviction, thereby making all three of her prior forgery convictions in case No. 06 CR 678 available for use in computing her criminal history:
“Here, a third conviction existed at the time Gilley was sentenced in No. 07CR297 simply due to the three counts of forgery contained therein, to which Gilley pled guilty. The district court, by virtue of those three convictions, was required to sentence Gilley to the 45-day imprisonment term as a condition of her probation. Gilley’s criminal history at the time of sentencing on No. 07CR297 should have included the three prior forgeries because none of those convictions were used to impose the mandatory jail term.” Gilley, slip op. at 4.
Thus, the Court of Appeals vacated her sentence and remanded the case with directions that defendant be resentenced with a criminal history of E (three or more nonperson felonies).
Gilley,
slip op. at 4-5. Because the Court of Appeals reversed on this issue, it found it unnecessary to consider the State’s argument that the 45-day term of imprisonment as a condition of Gilley’s probation did not constitute an enhancement of the penalty under
We granted Gilley’s petition for review wherein she claims that the trial court properly determined her criminal history was category G. Her claim incorporates three questions: (1) Did Gilley’s three current forgery convictions in case No. 07 CR 297 provide a basis for treating her forgery conviction in Count 1 as a third conviction; (2) did the use of a conviction for both the purposes of the progressive sentencing scheme under
(1) Did defendant’s three current forgery convictions IN CASE No. 07 CR 297 PROVIDE A BASIS FOR TREATING HER FORGERY CONVICTION IN COUNT 1 AS A THIRD CONVICTION?
The defendant was charged with three counts of forgery under
It is clear from the record that when the defendant entered her plea to Count 1 of the complaint, the two remaining counts were criminal charges, not criminal forgery convictions. Thus, the remaining two charges could not serve as a basis for making defendant’s plea to Count 1 a third conviction under
(2) Did the use of a conviction for both the purposes of THE PROGRESSIVE SENTENCING SCHEME UNDER
Based upon our resolution above, there existed three prior forgery convictions of the defendant that the court could use to sentence her for a third conviction under Count 1 in case No. 07 CR 297 for a third forgery conviction under the provisions of
This case calls on us to interpret two statutes:
“(2) On a first conviction of a violation of this section, in addition to any other sentence imposed, a person shall be fined the lesser of the amount of the forged instrument or $500.
“(3) On a second conviction of a violation of this section, a person shall be required to serve at least 30 days’ imprisonment as a condition of probation, and fined the lesser of the amount of the forged instrument or $1,000.
“(4) On a third or subsequent conviction of a violation of this section, a person shall be required to serve at least 45 days’ imprisonment as a condition of probation, and fined tire lesser of the amount of the forged instrument or $2,500.
“(5) The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served the mandatory sentence as provided herein.”K.S.A. 21-3710(b)(2) -(5).
Gilley was sentenced under
“Prior convictions of any crime shall not be counted in determining the criminal history category if they enhance the severity level or applicable penalties .... Except as otherwise provided, all other prior convictions will be considered and scored.” (Emphasis added.)K.S.A. 21-4710(d)(ll) .
“any conviction, other than another count in the current case which was brought in the same information or complaint or which was joined for trial with other counts in the current case pursuant toK.S.A. 22-3203 and amendments thereto, which occurred prior to sentencing in the current case regardless of whether the offense that led to the prior conviction occurred before or after the current offense or the conviction in the current case.”
See State v. Ruiz-Reyes, 285 Kan. 650,655-56,175 P.3d 849 (2008) (discussing this provision and noting that it explicitly states that previous convictions finalized after a crime is committed but before sentencing for that crime may be used to determine criminal history).
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It is clear from these provisions that in both of the cases now subject to review, the three forgery convictions obtained in each of those cases cannot be used to calculate criminal history since they all constitute other “count[s] in the current case . . . brought in the same information or complaint.”
Standard of Review
The question before us turns on our interpretation of statutes— a question of law over which an appellate court exercises unlimited review. State v. Walker, 280 Kan. 513, 515, 124 P.3d 39 (2005). When courts are called upon to interpret statutes, the fundamental rule governing that interpretation is that “the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted.” State ex rel. Stovall v. Meneley, 271 Kan. 355, 378, 22 P.3d 124 (2001). For this reason, when the language of a statute is plain and unambiguous, courts “need not resort to statutory construction.” In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007), cert. denied 555 U.S. 937 (2008). Instead, “an appellate court is bound to implement the [legislature’s] expressed intent.” State v. Manbeck, 277 Kan. 224, Syl. ¶ 3, 83 P.3d 190 (2004). Only where “the face of the statute leaves its construction uncertain, [may] the court. . . look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. [Citation omitted.]” Robinett v. The Haskell Co., 270 Kan. 95, 100-01, 12 P.3d 411 (2000).
Analysis
According to Gilley, the plain language of
The State argues that the same conviction may be used to define a sentence under
We disagree. While a district court has discretion to require up to 60 days in jail as a condition of a defendant’s probation,
We hold that when a defendant’s prior forgery convictions are used to increase the mandatory minimum sentence for the crime of conviction in the progressive sentencing scheme in
(3) Did the trial court err in setting defendant’s CRIMINAL HISTORY AS CATEGORY G?
In the case before us, Gilley was convicted of three counts of forgery based on the same complaint or information, and she had been convicted of forgery three previous times. If Gilley’s three
current
forgery convictions triggered the 45 days of imprisonment as a condition of her probation (as required by
The progressive sentencing scheme for forgery convictions does not make any reference to “prior convictions.” Compare
Because
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Instead, as the record clearly establishes, Gilley’s plea to Count 1 was treated as a third forgery conviction under
The judgment of the Court of Appeals reversing the district court is reversed. The judgment of the Reno County District Court is affirmed.