State v. PaulState v. Paul
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Daubin Paul was convicted in 2005 of one count of sale of methamphetamine and one count of possession of drug paraphernalia. The trial court determined that his sale of methamphetamine conviction was a severity level 1 drug felony under
Facts
On. May 13, 2005, Paul was convicted in Saline County of one count of sale of methamphetamine and one count of possession of drug paraphernalia based upon conduct that occurred on July 20, 2004. Defendant acknowledges, and the record establishes, that defendant was twice convicted in 1999 of felony drug convictions “under this section,” as specified in
. The. trial court determined that the defendant’s present drug conviction was a severity level 1 drug felony under
Paul raised several additional claims of error before the Court of Appeals. However, his petition for review from the Court of Appeals’ decision affirming his convictions and sentence identifies only the issue of the appropriate severity level for his conviction for sale of methamphetamine. In addition to his argument on this issue before the Court of Appeals, Paul claims that the decision in his case is inconsistent with another published decision of the Court of Appeals, State v. Ruiz-Reyes, 37 Kan. App. 2d 75, 149 P.3d 521 (2007), which was decided on the same day. We granted review in Ruiz-Reyes and decide it together with this case on this day. Our decision in Ruiz-Reyes demonstrates that no such inconsistency exists between the cases, as the decisions in both cases are based on the applicable plain language of 65-4161. See State v. Ruiz-Reyes, 285 Kan. 650,175 P.3d 849 (2008).
Resolution of this case turns on our interpretation of
When called upon to interpret a statute, the intent of the legislature expressed through the language in the statute governs. When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007). Ordinary words are given their ordinary meanings. A statute should not be read to add language that is not found in it or to exclude language that is found in it. Bryan, 281 Kan. at 159.
Where the statutory provision or language is ambiguous, that is, where the statute contains provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its language, and leaves us generally uncertain which one of two or more meanings is the proper meaning, we must resort to maxims of construction. See Weber v. Tillman, 259 Kan. 457, 476, 913 P.2d 84 (1996). “The fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained.” Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). In addition, courts called on to construe the meaning of ambiguous criminal statutes must consider “ ‘[t]he general rule . . . that a criminal statute must be strictly construed in favor of the accused, which simply means that words are given their ordinary meaning. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute.’ ” State v. McCurry, 279 Kan. 118, 121, 105 P.3d 1247 (2005). Nevertheless, this rule relating to strict construction of criminal statues “ ‘is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.’ [Citation omitted.]” 279 Kan. at 121.
Finally, we have noted that “[i]n construing statutes and determining legislative intent, several provisions of an act or acts, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony if possible. [Citation omitted.]” Petty v. City of El Dorado, 270 Kan. 847, 852, 19 P.3d 167 (2001).
KS.A. 2006 Supp. 65-4161
“(a) Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to sell, offer for sale or have in such person’s possession with intent to sell, deliver or distribute; prescribe; administer; deliver; distribute; or dispense any opiates, opium or narcotic drugs, or any stimulant designated in subsection (d)(1), (d)(3) or (f)(1) ofK.S.A. 65-4107 and amendments thereto. Except as provided in subsections (b), (c) and (d), any person who violates this subsection shall be guilty of a drug severity level 3 felony.
“(b) If any person who violates this section has one prior conviction under this section or a conviction for a substantially similar offense from another jurisdiction, then that person shall be guilty of a drug severity level 2 felony.
“(c) If any person who violates this section has two or more prior convictions under this section or substantially similar offenses under the laws of another jurisdiction, then such person shall be guilty of a drug severity level 1 felony.” (Emphasis added.)
See
Application of the plain language of the above statute to the facts of this case yields the following results: Paul is a person who violated
Based upon the plain language of the statute, we affirm the decision of the Court of Appeals affirming the district court. However, we recognize that defendant’s primary argument—that his two prior convictions occurring on the same date required the trial court to treat them as one prior conviction—has created some confusion and should be fully addressed in our opinion. At the same time, we note that to credit Paul’s argument, we would have to read into the language of
Paul attempts to create ambiguity not by pointing to the language of
In order to more fully understand Paul’s argument, it is helpful to provide a brief review of the habitual criminal statutes and the interpretation of those statutes by the courts of this state. The HCA was adopted by the Kansas Legislature “in the hope of bringing about a reformation of criminals by an increased penalty for a second offense and when that hope of reformation had passed then the increased punishment should be meted out for the third offense.” State v. Murray, 200 Kan. 526, 530, 437 P.2d 816 (1968). In State v. Lohrbach, 217 Kan. 588, 591, 538 P.2d 678 (1975), this court similarly explained:
“The basic philosophy underlying recidivist statutes might be expressed in this fashion: where the punishment imposed against an offender for violating the law has failed to deter him from further infractions, a harsher and more severe penalty is justified, the idea being, hopefully, that the greater punishment may serve as an object lesson and cause him to accomplish his reformation, where the lesser penalty had failed in that respect.”
To effectuate this purpose, this court held that under the HCA, “a convict must be subject to sentence for a second felony conviction before he can be sentenced for a third felony conviction.” Murray, 200 Kan. at 531.
The Court of Appeals in Wilson considered almost the identical issue under the HCA that we now consider in Paul’s case under the KSGA. The question in Wilson was whether a conviction could be treated as a third offense under the HCA (and the term of the sentence increased accordingly) based on two convictions for offenses committed on different days that were obtained prior to the commission of the current offense but on the same day as one another. Wilson concluded that prior convictions obtained on the same day could only be used as a single conviction for purposes of increasing a sentence under the HCA:
“Our case law has pronounced that where there are convictions for multiple offenses growing out of a single act or transaction, or where there are multiple convictions obtained on the same date for offenses committed at different times or places, the multiple convictions can be used only as a single conviction for the purpose of sentence enhancement. . . . The common denominator of these rules is that sentence enhancement requires conviction prior to commission of the subsequent offense, the requirement we have noted as legislatively and judicially made applicable to enhancementof sentence of a defendant as a second offender. Recognition of judicial expressions of the puipose, objective and philosophy of our habitual criminal statute, K.S.A. 1980 Supp. 21-4504 and its pred ecessors, and logic compel application of the sequential relation requirement to the enhanced sentencing of defendants as third-time offenders.” 6 Kan. App. 2d at 306.
This court adopted the reasoning of Wilson and affirmed the holding. 230 Kan. at 287-88.
We acknowledge that there were sound reasons for our interpretation of the HCA, not the least of which involved a “[recognition of judicial expressions of the purpose, objective and philosophy of our habitual criminal statute,
The Kansas Sentencing Guidelines Act (KSGA)
Paul’s argument ignores not only the plain language of
Particularly with regard to drug crimes, the KSGA provides that the sentencing guidelines grid in
Most important for the resolution of this case, the definition of “prior conviction” provided by the KSGA is much broader than that previously discussed by the Kansas courts under the HCA. Although the KSGA in
“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.” (Emphasis added.)K.S.A. 21-4710(a) .
Nothing in the definition of prior conviction or in the plain language of
Kansas Case Law After 1993
This court first considered the effect of the adoption of the KSGA on self-contained habitual criminal statutes in its decision in
Crank.
There, we were called on to interpret
“In reaching this result, we have examined legislative intent as expressed throughout the Uniform Controlled Substances Act, the Sentencing Guidelines Act, and records of the House and Senate Judiciary Committee sessions. The legislature has clearly expressed an intent to use prior convictions to enhance the severity level of drug crimes.” 262 Kan. at 455-56.
We did not specifically determine in Crank whether the sequential analysis previously used by the Kansas courts under the HCA would continue under habitual criminal statutes governed by the KSGA because the question was not before us.
However, in
State v. Bandy,
25 Kan. App. 2d 696, 971 P.2d 749 (1998),
rev. denied
266 Kan. 1110 (1999), the Court of Appeals considered the precise question of whether the HCA sequential analysis in
Wilson
applied under the KSGA.
Bandy
turned on the interpretation of a self-contained habitual criminal statute involving a third offense for driving with a suspended license. See
Bandy considered the legislative history of both the HCA and the KSGA and concluded that “[t]he KSGA has all but ehminated the HCA and, thus, the accompanying Wilson rule.” 25 Kan. App. 2d at 699- Quoting this court’s decision in State v. Spain, 263 Kan. 708, 711, 953 P.2d 1004 (1998), Bandy noted that “ ‘ “[W]hen the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment.” ’ [Citation omitted.]” 25 Kan. App. 2d at 699. In addition, Bandy noted that “[t]he objectives of the KSGA are broader than those of the HCA in that the guidelines were intended to standardize sentences so that similarly situated offenders would be treated the same, thus limiting the effects of racial and geographic bias. [Citations omitted.]” 25 Kan. App. 2d at 699.
Bandy
considered the language in
“The intent of the legislature in determining a defendant’s criminal history in the KSGA is to allow all prior convictions regardless of the timing of the previous offense(s). We extend by analogy this intention and apply it to other self-contained habitual violator statutes, such as the driving with a suspended license statute,K.S.A. 1997 Supp. 8-262(a)(l) . This provides a harmonious application of all habitual violator statutes regardless of whether an individual statute is silent as to the timing of prior offenses.” 25 Kan. App. 2d at 700.
As such,
Bandy
found that “the KSGA is the ‘new’ and ultimate habitual violator statute.” 25 Kan. App. 2d at 699. However, our previous discussion in this case illustrates that
Bandy
s holding that the definition
In
Thompson v. State,
32 Kan. App. 2d 1259, 1267, 96 P.3d 1115 (2004),
rev. denied
278 Kan. 852 (2005), the Court of Appeals similarly considered whether the district court erred by finding that the defendant’s conviction under
The
Thompson
court noted a conflict between the earlier HCA jurisprudence under
Wilson
and the later definition of a prior conviction under the KSGA, as discussed by the Court of Appeals in
Bandy:
On the one hand, under the
Wilson
rule “there must be
the commission and conviction of a first offense, followed by the commission and conviction of a second offense, followed by the commission and conviction of a third offense.”
Thompson,
32 Kan. App. 2d at 1264. On the other hand, the KSGA states that “all prior convictions are considered, regardless of the timing of the previous offenses.” 32 Kan. App. 2d at 1264; see
Thompson
reasoned that the sweeping holding of
Bandy
appeared to be in conflict with the plain language of
Thompson, however, did not resolve what it considered to be a potential conflict between the HCA and KSGA because the defendant’s prior convictions “fit under both of these rules”; the defendant’s prior convictions followed an offense-conviction-offense-conviction format. 32 Kan. App. 2d at 1264-65.
Finally, in
Ruiz-Reyes,
the defendant was sentenced as a severity level 2 drug offender pursuant to
The Court of Appeals agreed, reversed the defendant’s sentence, and remanded for resentencing. 37 Kan. App. 2d at 80. In particular, the court noted that the KSGA defines “prior conviction[s]” for purposes of determining a defendant’s criminal history so as to include all convictions finalized prior to sentencing. 37 Kan. App. 2d at 78. The Court of Appeals correctly noted that because the plain language in
Paul advances two additional arguments for why this court should continue to apply our prior analysis under HCA to KSGA sentences. First, he argues that “[i]t
“The plain language of [K.S.A. 2006 Supp. 65-4161 ] does not require that a defendant be sentenced first to a severity level 4 offense, then to a severity level 2 offense, and then to a severity level 1 offense. The [severity] level of the offense is dependent solely on the number of previous convictions.” 32 Kan. App. 2d at 1267.
Finally, Paul contends that because his 1999 convictions were not used to enhance the severity levels of those crimes, the court should not in turn use those convictions to enhance the severity level of his current crime of conviction. In making this claim, Paul again fails to comprehend the plain language of
Conclusion
The plain language of
The plain language of
Affirmed.
Johnson, J., not participating. Hill, J., assigned.