State v. HarroldState v. Harrold
- Reporters:
- , ,
- Before:
- Schroeder
Lead Opinion
The opinion of the court was delivered by
Miller, J.;Thе defendant, Richard G. Harrold, entered pleas of guilty to charges of aggravated incest, K.S.A.. 1985 Supp. 21-3603(2)(a), a class D felony, and aggravated criminal sodomy,
The first issue facing us in this appeal is the matter of jurisdiction. In State v. Haines, 238 Kan. 478, 712 P.2d 1211 (1986), a majority of the court held that one who pleads guilty may not, by direct appeal, challenge his sentence or the denial of probation; his only remedy is by way of a
“An appeal to the appellate court having jurisdiction of the appeal may be taken by the defendаnt as a matter of right from any judgment against said defendant in the district court and upon appeal any decision of the district court or intermediate order made in the progress of the case may be reviewed, except that no appeal shall be taken by the defendant from a judgment of conviction before a district judge or associate district judge upon a plea of guilty or nolo contendere, except that jurisdictional or other grounds going to the legality of the proceedings may be raised by the defendant as provided inK.S.A. 60-1507 .”
“(4) ‘Conviction’ includes a judgment of guilt entered upon a plea of guilty.”
“(2) Words or phrases not defined in this code but which are defined in the Kansas criminal code shall have the meanings given therein except when a particular context clearly requires different meanings.”
Prior to the enactment of
In State v. Buckner, 223 Kan. 138, 574 P.2d 918 (1977), defendant, after a jury trial, contended on appeal that the trial couft abused its discretion in imposing a controlling 90-years-to-life sentence upon him. Though he did not allege partiality, prejudice, or corrupt motive, or that the sentences exceeded the stаtutory maximum, we entertained the appeal, and held that the action of the trial court was arbitrary, unreasonable, and an abuse of discretion. We vacated the sentence and remanded for resentencing.
In State v. Reeves, 232 Kan. 143, 652 P.2d 713 (1982), defendant entered a plea of guilty to one count of aggravated robbery and one count of aggravated burglary. Aftеr sentence was imposed, Reeves took a direct appeal, contending that the trial court based its sentencing decision upon improper rationale, failed to follow the dictates of the sentencing statute, and abused its discretion. Without referring to
In State v. Green, 233 Kan. 1007, 666 P.2d 716 (1983), defendant tоok a direct appeal from the sentence imposed and denial of probation after he had entered a plea of guilty to aggravated robbery. He did not challenge his conviction. He contended instead that the sentence imposed and the denial of probation constituted an abuse of discretion. We considerеd
Green was followed by Haines, which overruled Green and held that one who pleads guilty may not take a direct appeal challenging the denial of рrobation or the sentence imposed. On the same day that the Haines opinion was decided, we handed down our unanimous opinion in State v. Booze, 238 Kan. 551, 712 P.2d 1253 (1986). In the trial court Booze entered a plea of guilty to two separate charges of driving while under the influence of alcohol. He appealed from the sentence imposed, contending that the trial сourt erred by failing to sentence him as a first offender on the second offense. Without discussing jurisdiction, we considered the merits of the appeal and affirmed.
Next came State v. Johnson, 239 Kan. 124, 716 P.2d 192 (1986). Johnson was convicted of first-degree murder and aggravated robbery upon his pleas of nolo contendere. He took a direct appeal, contending that the disparity betwеen the sentences imposed upon him and the sentences imposed upon his codefendant constituted an abuse of judicial discretion. He made no claim that the sentences imposed were the result of partiality, prejudice, or corrupt motive, or that they exceeded the limitations prescribed by statute. Again, without discussing jurisdiction, we entertained the appeal and unanimously decided it upon its merits.
Finally, on June 13, 1986, we decided State v. Turner, 239 Kan. 360, 721 P.2d 255 (1986). Turner entered a plea of guilty and was later sentenced and placed on probation. His probation was revoked and he was committed to custody. He then filed a motion to withdraw his plea of guilty and after a hearing the trial court denied the motion. Turner appealed. The Court of Appeals considered his motion to set aside his plea of guilty as a proceeding under
The defendant was convicted of aggravated incest,
Aggravated incest, a class D felony, is punishable by an indeterminate term of imprisonment, the minimum not less than two years nor more than three years and the maximum not less than five years nor more than ten years.
Aggravated criminal sodomy, a class B felony, is punishable by an indeterminate term of imprisonment, the minimum not less than five nor more than fifteen years and the maximum not less than twenty years nor more than life.
“This article shall be liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders shall be correctively treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, or fine whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for at least a minimum term within the limits provided by law.”
This section does not enumerate factors to be considered but, as the 1968 Judicial Council report observes, “probably expressses the current objectives of the correctional process.”
In State v. Buckner, 223 Kan. at 151, we said:
“The legislature has dictated, inK.S.A. 21-4606, certain minimum factors to be considered in imposing sentence. Although the statute may not require it, we feel that when the sentence exceeds the minimum, it is better practice for the trial court to make, as part of the record, a detailed statement of the facts and factors considered by the court in imposing sentence. Such a record would be of great assistance to the appellate courts in determining whether the trial court has abused its discretion. ‘Absent a statement of reasons, the record will not reveal whether the legislatively mandated factors have been considered.’ Commonwealth v. Riggins, [474 Pa. 115, 377 A.2d 140 (1977)].”
A trial court’s failure to make a detаiled statement of the factors considered by the court in imposing sentence does not necessarily, in and of itself, demonstrate an abuse of discretion; each case must be separately considered on its facts. In the more recent case of State v. Richard, 235 Kan. 355, 366, 681 P.2d 612 (1984), we said:
“Although the trial court did not expressly consider the factors set forth in 21-4606 in sentencing the appellant, we do not believe the trial court abused its discretion in imposing a sentence in excess of the minimum allowed underK.S.A. 21-4501(c) on the aggravated battery charge. The evidence indicates the appellant twice made attempts upon the life of Darlene Bruner, the second of which was successful. No mitigating factors appеar in the record for fixing a minimum sentence, such as grounds for excusing or justifying the appellant’s criminal conduct or conduct by the victim which induced or facilitated the defendant’s criminal conduct. The two sentences were ordered to run concurrently. Where indeterminate sentences are imposed on the same date and run concurrently, thе shorter minimum terms merge in and are satisfied by serving the longest minimum term.”
The trial court in the case now before us heard extensive arguments by trial counsel. The report of Dr. Howard Brodsky, chief psychologist at the Sedgwick County Department of Mental Health, the report of the court services officer, and later the report of the Kansas State Reception and Diagnostic Center, were all before the court, and the contents and recommendations of each were pointed out to the judge in oral argument. These reports and recommendations were, of course, only advisory; the judge was not obliged to follow those recommendations. In the final analysis, it is the judge and the judge аlone who determines the appropriate sentence or other disposition in each case. Our statutes do not provide for the fixing of sentences by a board of experts. Instead, the trial judge must fix the sentence to be served in the exercise of his or her best judgment, common sense, and judicial discretion, and considering all of the reports, the defendant’s background, the facts of the case, and the public safety. The sentencing judge here did not follow all of the recommendations contained in the various reports, nor was he obliged to do so.
Many of the factors enumerated in
The offenses involve two little girls, defendant’s daughter and a playmate. Defendant’s аcts were atrocious. The defendant, a 28-year-old, 230-pound adult male, sodomized and otherwise molested two little girls, ages five and eight. In imposing sentence, the judge must consider, among others, two general objectives: protection of the public and reducing the likelihood of recurrence, or deterrence. See American Bar Assоciation Standards Relating to Sentencing Alternatives and Procedures (1968), commentary to Standard 2.2, page 62; and Guides for Sentencing, published by the National Council on Crime and Delinquency (2d ed. 1974), pages 1,3. The trial court could have placed the defendant on immediate probation, but that would have had but a minimal deterrent or preventive effeсt, and would not have protected the public or, more specifically, the little children in the community. The judge could have imposed miniumum concurrent sentences, or he could have imposed maximum consecutive sentences. Instead, the judge chose a middle course, a bit longer sentence than the minimum possible under the statute, but half of thе maximum. The sentences imposed are concurrent, and thus the controlling sentence is that imposed for aggravated criminal sodomy. It would’ have been most helpful to this court had the trial judge stated the factors he considered important in imposing sentence, as suggested in Buckner. Nevertheless, under the factual background and the circumstances of this case, we hold that the judge did not abuse his discretion and the sentences imposed are not excessive.
The judgment is affirmed.
Dissenting Opinion
dissenting: The bench and bar are entitled to better guidance from the Supreme Court than its opinion herein discloses. Two simple unambiguous statutes are applicable and they should not be given.a tortured construction.