State v. LuttigState v. Luttig
- Reporters:
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- Before:
- Greene
Lead Opinion
The State appeals the district court’s determination of Wanda Luttig’s criminal history score following her conviction of two counts of forgeiy. Luttig had two prior forgeiy convictions. Based on Luttig’s third conviction of forgery, the district court or*1096dered her to serve 45 days in jail as a condition of probation. The issue is whether the district court used Luttig’s prior forgery convictions to enhance her applicable penalty in this case and, if so, to what extent. We affirm in part, vacate in part, and remand for further proceedings.
On February 15, 2008, Luttig pled guilty to two counts of forgery. Luttig’s presentence investigation report listed her criminal history score as category E based on three prior nonperson felonies, two of which were forgeries. Luttig objected to the inclusion of the two prior forgeries in her criminal history score to the extent that the convictions were being used to enhance her penalty in the current case.
Luttig was sentenced on March 28, 2008. The district court found that because the case was Luttig’s third forgery conviction, the statute required her to serve at least 45 days in jail as a condition of probation. Thus, the district court determined that the two prior forgery convictions enhanced the applicable penalty and could not be counted in Luttig’s criminal history. The district court stated:
“The court will find, since in the court’s view and interpretation of a statute that criminal history does not include prior convictions which enhance the applicable penalties, that in fact because of the nature of tire forgery and there is mandatory jail time on subsequent convictions, that in fact the prior convictions do enhance the penalty and therefore are not included in the criminal history. So the two prior forgeries will not be included which would change the criminal history from category E to category G.”
The district court imposed a controlling sentence of 10 months’ imprisonment and placed Luttig on probation for 18 months with the mandatory condition that she serve 45 days in jail. The State timely appeals.
The State claims the district court erred in determining Luttig’s criminal history score. Specifically, the State argues that the mandatoiy 45 days’ imprisonment as a condition of probation on a third forgery conviction does not enhance the applicable penalty. Thus, the State argues that Luttig’s two prior forgeiy convictions should have been scored as part of her criminal history.
*1097Resolution of this issue involves statutory interpretation. Interpretation of a statute is a question of law, and an appellate court’s standard of review is unlimited. State v. Ruiz-Reyes, 285 Kan. 650, 653, 175 P.3d 849 (2008).
We must examine two separate statutes under the Kansas Criminal Code. First,
“(b)(1) Forgery is a severity level 8, nonperson felony.
(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 the lesser of the amount of the forged instrument or $2,500.” (Emphasis added.)
Second,
“Prior convictions of any crime shall not be counted in determining the criminal history category if they enhance the seventy level or applicable penalties, elevate the classification from misdemeanor to felony, or are elements of the present crime of conviction. Except as otherwise provided, all other prior convictions will be considered and scored.” (Emphasis added.)
The fundamental rule of statutory construction, to which all other rules are subordinate, is that the intent of the legislature governs. State v. McElroy, 281 Kan. 256, 262, 130 P.3d 100 (2006). An appellate court’s first task is to “ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007).
When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read the statute to add something not readily found therein. In such an instance, an appellate court need not resort to statutory construction. It is only if the statute’s language or text is unclear or ambiguous that an appellate court moves to the next analytical step, applying canons of construction or relying on legislative his*1098tory construing the statute to effect the legislature’s intent. In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007).
When statutes are ambiguous or unclear, an appellate court will apply canons of construction to effect the legislative intent. When construing statutes to determine legislative intent, an appellate court must consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible. State v. Breedlove, 285 Kan. 1006, 1015, 179 P.3d 1115 (2008). A specific statute controls over a general statute. In re K.M.H., 285 Kan. at 82. As a general rule, criminal statutes must be strictly construed in favor of the accused. Any reasonable doubt as to the meaning of the statute is decided in favor of the accused. Nevertheless, this rule of strict construction is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Paul, 285 Kan. 658, 662, 175 P.3d 840 (2008).
Against this backdrop, the State argues that Luttig’s 45-day prison term for her third forgery conviction mandated by
This argument fails under the plain language of
*1099The State’s argument would have merit if
We do not interpret
We agree with the dissent that application of
*1100However, we disagree that the district court was required to use both of Luttig’s prior forgery convictions in order to impose the mandatory 45-day jail term as a condition of her probation. Luttig pled guilty to two counts of forgery in the present case. She was required to serve 45 days in jail as a condition of probation on a third or subsequent felony conviction.
Because Luttig pled guilty to two counts of forgery in the present case, the district court was only required to use one of her prior forgery convictions in order to impose the 45-day jail term. The district court should have counted Luttig’s other prior forgery conviction, resulting in a criminal histoiy of two prior nonperson felonies. Therefore, we vacate Luttig’s sentence and remand with directions to resentence Luttig under criminal history category F.
Affirmed in part, vacated in part, and remanded.
Concurrence Opinion
dissenting in part and concurring in part: I respectfully dissent from the majority’s holding in Syl. ¶ 4 of the opinion. I would conclude counting Luttig’s prior forgery convictions to determine criminal history does not run afoul of K.S.A 21-4710(d)(11) because the applicable penalty for forgery is 7 to 23 months. See
One of the reasons Kansas went from indeterminate sentencing to a modified determinate sentencing scheme was to address and *1101correct disparity in sentencing. And, to some degree,
I also find support in 21-4704(i) that requires inclusion of all prior forgery convictions to determine a defendant’s criminal history. In other words, a defendant’s criminal history and the applicable grid box under sentencing guidelines will be the same regardless of whether the defendant is given a presumptive sentence or there is a departure sentence.
“The sentence for the violation of the felony provision ofK.S.A. 8-1567, subsection (b)(3) ofK.S.A. 21-3412a, subsections (b)(3) and (b)(4) ofK.S.A. 21-3710, K.S.A. 21-4310 andK.S.A. 21-4318, and amendments thereto, shall be as provided by the specific mandatory sentencing requirements of that section and shall not be subject to the provisions of this section orK.S.A. 21-4707 and amendments thereto. If because of the offenders criminal history classification the offender is subject to presumptive imprisonment or if the judge departs from a presumptive probation sentence and the offender is subject to imprisonment, the provisions of this section and KS.A. 21-4707, and amendments thereto, shall apply and the offender shall not be subject to the mandatory sentence as provided in KS.A. 21-3710, and amendments thereto. Notwithstanding the provisions of any other section, the term of imprisonment imposed for the violation of the felony provision ofK.S.A. 8-1567, subsection (b)(3) and (b)(4) ofK.S.A. 21-3710, K.S.A. 21-4310 andK.S.A. 21-4318, and amendments thereto, shall not be served in a state facility in the custody of the secretary of corrections.” (Emphasis added.)
While perhaps somewhat ponderous, the emphasized language certainly means an offender’s criminal history must include all prior forgery convictions regardless of whether probation is granted. Any other construction would create a significant sentencing disparity between offenders with identical past forgery convictions depending on whether probation was granted or the sentencing court decided to depart and impose a prison sentence.
One short example of the problem. Joe and Tom have identical criminal records with two prior forgery convictions. Both pled *1102guilty to another forgery. Joe is to receive a presumptive sentence of probation with 45 days in the county jail; consequently, his criminal history does not include the two prior forgeries. Tom, on the other hand, receives a departure sentence of imprisonment and his two prior forgeries are included in his criminal history. As a result, Tom receives a significantly longer sentence than Joe. Later Joe’s probation is revoked, but his sentence to be served is less than Tom’s because he received the criminal history windfall.
In summary, Joe and Tom should be treated equally in the eyes of the law.