STATE OF KANSAS, Appellee, v. EBONY NGUYEN, Appellant.
No. 112,316
Supreme Court of Kansas
May 20, 2016
(372 P.3d 1142)
Joanna Labastida, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Boyd K. Isherwood, assistant district attorney, argued the cause, and Mark Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
Nuss, C.J.: Ebony R. Nguyen appeals the district court‘s denial of her motion for a downward durational departure of her life sentence for felony murder. Because the district court
FACTS AND PROCEDURAL HISTORY
The facts are undisputed. Nguyen unwittingly received counterfeit money from Jordan Turner in exchange for her marijuana. Upon discovering the deception and with the assistance of three others, Nguyen retaliated by luring Turner to a secluded location where he was shot and killed. With kidnapping serving as the underlying felony, Nguyen pled nо contest to one count of felony murder under
Before Nguyen was sentenced, she filed a motion for durational departure from a life sentence and sought a sanction of between 147 to 165 months in prison. At the hearing on the motion the district court stated it had no discretion to depаrt from the life sentence but, if so, it would not have granted departure:
“Well, I‘ll say for the record that in my opinion, the Court doesn‘t have discretion. This is an off-grid offense, and it calls for a life sentence.
“Now, on appeal, if the appellate court were to disagree with that, my pоsition, for purposes of the record, is that I would be unable to find substantial and compelling reasons to depart. Miss Nguyen was the driving force behind the shooting in this case, and under those circumstances, it would be wholly inappropriate for the Court to depart, so if the Court did have the discrеtion to consider the motion to depart, the Court would deny the motion.”
Accordingly, the court denied Nguyen‘s motion and imposed a life sentence with parole eligibility after 20 years. See
Our jurisdiction is proper under
More facts will be added as necessary to the analysis.
ANALYSIS
Issue: The district court did not err in concluding that
Nguyen argues that because
Nguyen further argues that once we have agreed the district court had deрarture discretion, several factors warrant the court‘s exercise of that discretion to reduce her sentence: her lack of criminal history, her limited role in the murder, and her age and lack of maturity. But because we reject Nguyen‘s first argument, we do not reach her second one.
Standard of review
Whether the district court has discretion to grant a durational departure from a felony-murder life sentence requires interpretation of the revised Kansas Sentencing Guidelines Act (KSGA),
In exercising our unlimited review, we acknowledge that “[t]he fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained.‘” Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015). A statute‘s language is our paramount consideration because ““the best and only safe rule for ascertaining the intention of the makers of any written law is to abide by the language they have used.““” State v. Looney, 299 Kan. 903, 906, 327 P.3d 425 (2014) (quoting Gannon v. State, 298 Kan. 1107, 1143, 319 P.3d 1196 [2014] [quoting Wright v. Noell, 16 Kan. 601, 607, 1876 WL 1081 (1876)]). “When statutory language is plain and unambiguous, there is no need to resort to statutory construction. An appellate court merely interprets the language as it appears; it is not free to speculate and cannot read into the statute language not readily found there.” State ex rel. Schmidt v. City of Wichita, 303 Kan. 650, 659, 367 P.3d 282 (2016).
When legislativе intent cannot be derived from the plain language of the statute, this court may look to legislative history or employ other methods of statutory construction. State v. Holt, 298 Kan. 469, 474, 313 P.3d 826 (2013).
Discussion
We start our analysis by acknowledging that
“Violations of
K.S.A. 2015 Supp. 21-5401 ,21-5402 ,21-5421 ,21-5422 and21-5901 , and amendments thereto, are off-grid crimes for the purрose of sentencing. Except as otherwise provided byK.S.A. 2015 Supp. 21-6617 ,21-6618 ,21-6619 ,21-6622 ,21-6624 ,21-6625 ,21-6628 , and21-6629 , and amendments thereto, the sentence shall be imprisonment for life and shall not be subject to statutory provisions for suspended sentence, community service or probation.” (Emphasis added.)K.S.A. 2015 Supp. 21-6806(c) .
We next note that the exceptions listed in
Nguyen argues this court essentially interpreted this language in a predecessor statute—
But Nguyen‘s reliance on Gleason is misplaced. The issue before this court concerned whether the district court was required to compare defendant‘s sentence to the lesser sentences of his codefendants, not whether the sentencing statute allowed for durational departure. 277 Kan. at 656. So, we reject Nguyen‘s argument that in Gleason we implicitly acknowledged a district court‘s discretion to depart from a life sentence for felony murder.
Moreover, since Gleason we twice have expressly stated that the life sentence for felony murder is mandatory. Four years after Gleason we stated: “[T]he district court imposed a mandatory life sentence for the felony murder” and declared: “The sentence imposed for [the defendant‘s] felony murder, a mandatory life sentence, conforms to the statutory provisions.” (Emphasis added.) State v. Heath, 285 Kan. 1018, 1019, 179 P.3d 403 (2008). In Heath we cited the previous, substantially similar felony-murder sentencing statute in effect at the time,
Six years after Heath we similarly pronounced in State v. Brown, 300 Kan. 542, 562-63, 331 P.3d 781 (2014):
“A person convicted of felony murder is subject to a mandatory sentence of life
imprisonment. See K.S.A. 21-4706(c) . A person serving a life sentence for a felony murder committed after July 1, 1999, becomes parole eligible after 20 years of confinement.K.S.A. 22-3717(b)(2) .” (Emphasis added.)
These declarations are consistent with the plain language of
Despite the foregoing, in none of these decisions did we expressly analyze this particular statutory phrase—“the sentence shall be imprisonment for life“—with the language that immediately follows it: “and shall not be subject to statutоry provisions for suspended sentence, community service or probation.”
Nguyen argues that by listing “suspended sentence, community service or probation” the legislature merely prohibited them and any similar unlisted dispositional departures but did not prohibit the durational departure she requested. The State responds this language shows that the intent of the legislature was to disallow any departures.
To assist our analysis, we observe that after Nguyen cоmmitted her crime in March 2013, the legislature added language to another statute to specifically govern felony-murder sentences. Although the amendment to the statute applies to felony murders committed after July 1, 2014, it is of guidance in determining the legislative intent in
The amendment to that statute,
“[A] defendant convicted of murder in the first degree as described in subsection (a)(2) [felony murder] of
K.S.A. 2015 Supp. 21-5402 , and amendments thereto, shall be sentenced to imprisonment for life and shall not bе eligible for probation or suspension, modification or reduction of sentence. In addition, the defendant shall not be eligible for parole prior to serving 25 years’ imprisonment, and such 25 years’ imprisonment shall not be reduced by the application of good time credits. No othеr sentence shall be permitted.” (Emphasis added.)K.S.A. 2015 Supp. 21-6620(b)(1) .
When, as here, language has been added to an existing statute, the issue often becomes whether the new language is meant to constitute substantive legislative changes or simply to codify prior caselaw, e.g., to clarify. See Stueckemann v. City of Basehor, 301 Kan. 718, 745, 348 P.3d 526 (2015) (distinguishing substantive legislative changes from mere codification of prior caselaw); see also Brennan v. Kansas Insurance Guaranty Ass‘n, 293 Kan. 446, 458, 264 P.3d 102 (2011) (“When an original statute is ambiguous, the legislative purpose may be to clarify the statute‘s ambiguities, not to change the law.“); Estate of Soupene v. Lignitz, 265 Kan. 217, 222, 960 P.2d 205 (1998) (amendment which in effect construes and clarifies a prior statute must bе accepted as the legislative declaration of the meaning of the original act).
Faced with our decisions in Heath in 2008 and Brown in 2014, the legislature could have chosen to change this caselaw. In other words, it could have chosen to make substantive changes in
Indeed, the legislature chose the opposite approach to substantive change. By including disqualifying language far beyond the concеpts of probation and suspension in
The State makes additional arguments that we conclude support the holding that a life sentence is mandatory for felony murder, i.e., no departures are permitted. The State first notes that the general sentencing statute for on-grid crimes,
The State next observes that while mandatory life sentences for some types of off-grid crimes can nevertheless be eligible for departure, their empowering statutes are explicit in their departure authorization. It points to the statute controlling Jessica‘s Law sentencing,
“When a person is sentenced pursuant to subsection (a) or (b), such person shall be sentenced to a mandatory minimum term of imprisonment of not less than 25 years, 40 years or be sentenced as determined in subsection (a)(2) or subsection (b)(2), whiсhever is applicable, and shall not be eligible for probation or suspension, modification or reduction of sentence. In addition, a person sentenced pursuant to this section shall not be eligible for parole prior to serving such mandatory term of imprisonment, and such imprisonment shall not be reduced by the application of good time credits.” (Emphasis added.)
K.S.A. 2015 Supp. 21-6627(c) .
But unlike
Building on the State‘s argument, we also doubt that the legislature intended for the crimes it identified in the first sentence of
As a result, we hold that
The decision of the district court is affirmed.