State v. PealState v. Peal
- Reporters:
- , ,
- Before:
- Pierron
Defendant pled guilty to one count of aggravated robbeiy and one count of simple robbeiy. He was subsequently sentenced to 77 months for the aggravated robbery and 34 months for the simple robbeiy. The trial court ordered the sentences to run consecutively. Defendant appeals his sentence, arguing the trial court abused its discretion by ordering the two sentences to be served consecutively.
On July 26, 1993, defendant was charged with three counts of aggravated robbery. All three crimes occurred on or about July 20, 1993.
On October 4, 1993, after plea negotiations, defendant pled guilty to one count of aggravated robbery and one count of simple robbeiy. The remaining aggravated robbeiy charge was dismissed. Pursuant to the negotiations, the State agreed not to oppose a concurrent sentence.
Prior to defendant entering a plea at the hearing on October 4, 1993, the trial court explained to defendant that the State’s agreement not to oppose a concurrent sentence was not binding on the trial court. The court also informed defendant that aggravated robbery was a severity level 3 person felony. The court explained there was a presumption that defendant would be placed in prison for a minimum of 46 months and a maximum of 103 months on the aggravated robbeiy count. The court also explained that simple robbeiy was a severity level 5 person felony carrying a possible sentence ranging from 31 months’ to 68
After being informed of the possible sentence, the defendant entered a plea of guilty. The trial court accepted the plea and found him guilty of one count of aggravated robbery and one count of simple robbery.
On December 2, 1993, the State filed a motion seeking an upward durational departure from the sentencing guidelines. Defendant responded, seeking an order that the State disclose the unusual and aggravating factors it relied on to support its motion for a durational departure.
On December 20, 1993, defendant was sentenced. The trial court denied the State’s motion for an upward durational departure. The parties agreed that defendant had a category E criminal history. The trial court sentenced defendant to 77 months on the aggravated robbery count and 34 months on the simple robbery count. The sentences were ordered to run consecutively for a controlling sentence of 111 months.
The State, on the other hand, argues this court is without jurisdiction to consider defendant’s appeal. In resolving this jurisdictional question, this court must interpret the provisions of the Kansas Sentencing Guidelines Act (KSGA),
“Nonbase sentences will not have criminal history scores applied.”
In
State v. Myers,
20 Kan. App. 2d 401, Syl. ¶ 1, 888 P.2d 866 (1995), this court held that “[a]ppellate courts are without jurisdiction to consider appeals from a sentence entered for a felony committed on or after July 1, 1993, where the imposed sentence is within the presumptive sentence for the crime.
There is little, question that defendant could not have appealed either the 77-month sentence or the 34-month sentence imposed in this case because both were presumptive sentences. The question, however, is whether the trial court’s decision to impose the sentences consecutively is appealable.
“It is a iundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained.” City of Wichita v. 200 South Broadway, 253 Kan. 434, Syl. ¶ 1, 855 P.2d 956 (1993). See State v. Gonzales, 255 Kan. 243, 248-49, 874 P.2d 612 (1994). Generally, “[o]ur criminal statutes are to be construed strictly against the State.” State v. JC Sports Bar, Inc., 253 Kan. 815, 818, 861 P.2d 1334 (1993) (quoting State v. Sexton, 232 Kan. 539, 543, 657 P.2d 43 [1983]). However, this rule of construction is subordinate to the rule that judicial interpretation must effectuate legislative design and the true intent of the legislature. State v. Schlein, 253 Kan. 205, 215, 854 P.2d 296 (1993).
The relevant sections of
“(a) A departure sentence is subject to appeal by the defendant or the state. The appeal shall be to the appellate courts in accordance with rules adopted by the supreme court.
“(e) In any appeal, the appellate court may review a claim that:
(1) The sentence resulted from partiality, prejudice, oppression or corrupt motive;
(2) the sentencing court erred in either including or excluding recognition of a prior conviction or juvenile adjudication for criminal history scoring purposes; or
(3) the sentencing court erred in ranking the crime severity level of the current crime or in determining the appropriate classification of a prior conviction or juvenile adjudication for criminal history purposes.”
In
“ ‘One of the more common rules of statutory interpretation is that expressed in the Latin maxim expressio unius est exclusio alterius, i.e., the mention or inclusion of one thing implies the exclusion of another. This rule may be applied to assist in determining actual legislative intent which is not otherwise manifest, although the maxim should not be employed to override or defeat a clearly contrary legislative intention.’ ” State v. Luginbill, 223 Kan. 15, 20, 574 P.2d 140 (1977) (quoting In re Olander, 213 Kan. 282, 285, 515 P.2d 1211 [1973]).
Applying the maxim
expressio unius est exclusio alterius
leads to the conclusion that the legislature did not intend this court to entertain sentencing appeals on grounds other than those stated in
Whether the decision to impose consecutive sentences can be appealed depends on whether that decision was the result of one of the grounds specified in
A departure is defined in
In this case, the sentence imposed is not inconsistent with the presumptive sentence and, therefore, is not a departure sentence as that term is used in
We note that under certain circumstances a departure sentence can occur within the context of consecutive sentences, thereby creating a ground for appeal under
Appeal dismissed.