State v. PostState v. Post
- Reporters:
- , ,
- Before:
- Lockett
The opinion of the court was delivered by
Lockett, J.:
Michael James Post seeks review of the Court of Appeals decision in
State v. Post,
32 Kan. App. 2d 1222, 96 P.3d 662 (2004), affirming the district court’s sentencing order that denied him visitation with his girlfriend, the mother of Post’s sexual abuse victim, during his incarceration. Post asserts that the sentencing statute,
Post committed fellatio on C.M.’s 10-year-old son, T.M. T.M.’s 9-year-old brother, C.R., observed Post and told his older sister what Post had done. Post was charged with aggravated criminal sodomy and released on bond with the condition that he have no contact with the victim or any witness.
While Post was out on bond, C.R. reported that Post was living with him, his mother, C.M., and his brother, T.M., in violation of
Post ultimately entered into a plea agreement with the State. Post pled guilty to one count of aggravated indecent liberties with a child and entered an Alford plea to one count of attempted aggravated solicitation of a child and felony obstruction of official duty. Post requested to be placed on bond until his sentencing hearing. His request was denied. Post then filed a motion requesting visitation with C.M. while he was in the county jail awaiting sentencing. The district court granted Post’s motion.
On November 14, 2001, the district court sentenced Post to a controlling sentence of 73 months’ imprisonment, ordering the standard sentence for each of the three counts to run consecutively. In addition, the court entered a no-contact order, stating:
“You’ll have no contact whatsoever — and I’m reinforcing this order in the light of what I had previously ordered in this case, no contact whatsoever with [C.M., T.M., and C.R.]. I’m severing the codependency problem. You may have contact with them at some other time in life, but right now they’re not going to visit you. Period.
“No contact with any children under the age of 18 years of age.”
Post did not appeal his sentence. However, on February 7,2003, Post filed a motion requesting that C.M. be allowed to visit him in prison. At a hearing on Post’s motion, the State objected and informed the district court that C.M. had been taking her children, T.M. and C.R., to visit Post in prison. Concerned that C.M. would deliver messages from Post to T.M. and C.R., the district court denied Post’s motion.
Post appealed. Post argued that his sentence was illegal because the district court had no statutory authority to impose the no-contact order as a condition to his sentence of imprisonment. The Court of Appeals affirmed the district court’s denial of his motion for visitation in Post, 32 Kan. App. 2d at 1227-29. We granted Post’s petition for review.
An illegal sentence is a sentence imposed by a court without jurisdiction, a sentence that does not conform to the statutory provisions either in the character or the term of the punishment authorized, or a sentence that is ambiguous with respect to the time
“(1) Commit the defendant to the custody of the secretary of corrections if the current crime of conviction is a felony and the sentence presumes imprisonment, or the sentence imposed is a dispositional departure to imprisonment; or, if confinement is for a misdemeanor, to jail for the term provided by law;
....
“(3) release the defendant on probation if the current crime of conviction and criminal history fall within a presumptive nonprison category or through a departure for substantial and compelling reasons subject to such conditions as the court may deem appropriate . . . ;
“(4) assign the defendant to a community correctional services program as provided inK.S.A. 75-5291, and amendments thereto, or through a departure for substantial and compelling reasons subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution;
....
“(11) impose any appropriate combination of (1), (2), (3), (4), (5), (6), (7), (8), (9) and (10).” (Emphasis added.)
A fundamental rule of statutory construction to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in it. Puckett, 276 Kan. at 61.
Here, the Court
of
Appeals interpreted 21-4603d(a)(11) to authorize a combination of the prior ten subsections without hunting the combinations .o entire subsections.
Post,
32 Kan. App. 2d at 1227. In reaching this decision, the Court of Appeals relied on
Rather than follow its own precedent on this issue as stated in
State v. Chilcote,
7 Kan. App. 2d 685, 647 P.2d 1349,
rev. denied
231 Kan. 801 (1982), the Court of Appeals distinguished the case on the ground that
In
Chilcote,
the defendant raised a direct appeal, claiming that his sentence was invalid because the district court did not have authority to sentence him to both imprisonment and restitution. The
Chilcote
court interpreted
“(a) [c]ommit the defendant to the custody of the secretary of corrections . . . ;
....
“(c) release the defendant on probation subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution.”
The Chilcote court interpreted the phrase, “any appropriate combination” to include only combinations of entire subsections because the language did not include the phrase “or any parts thereof.” 7 Kan. App. 2d at 689-90. Noting that Chilcote’s sentence combined subsections that required the imposition of both incarceration and probation, which are mutually exclusive, the Chilcote court concluded that “the word ‘appropriate’ implies that the combination of penalties under the statute should be harmonious.” 7 Kan. App. 2d at 690. Accordingly, the Chilcote court vacated the sentence’s order for restitution. 7 Kan. App. 2d at 691.
We approved Chilcote in State v. McNaught,238 Kan. 567, 713 P.2d 457 (1986), where we considered whether the district court could sentence the defendant to jail and impose other conditions, including restitution, alcohol treatment, and revocation of defendant’s drivers license, until the restitution was paid and the alcohol treatment program completed. Relying on the Chilcote analysis, we found that the district court erroneously had sentenced the defendant by ordering imprisonment and imposing other conditions, and we vacated the conditions imposed on McNaught’s jail sentence. 238 Kan. at 589.
When
Contraiy to the Court of Appeals decision,
Chilcote
is not distinguishable because it interpreted the predecessor to the statute at issue in this case. As noted in the Court of Appeals’ decision, the legislature was aware of
Chilcote
when it amended 21-4603d(a) in 1994 to include restitution as a separate option for sentencing a defendant to prison. See L. 1994, ch. 348, sec. 10(a)(9). The 1994 amendments to
Furthermore, if the legislature had disagreed with the McNaught and Chilcote interpretation, it could have rewritten 21-4603d(a) authorizing the court to “impose any appropriate combination of the prior subsections or any part thereof.” The legislature, however, chose to enact the same language in the current statute, thereby expressing its intent that McNaught and Chilcote remain controlling law.
The language of the statute is plain and unambiguous. This court must give effect to the intention of the legislature as clearly expressed.
Puckett,
276 Kan. at 61. The court may only impose conditions when the defendant is sentenced to probation or community corrections.
To remedy the illegal sentence, Post requested that we vacate the condition placed on his incarceration and remand the matter to the district court for resentencing. We decline to follow Post’s resentencing suggestion. The illegal no-contact condition of Post’s sentence is vacated; the remaining portions of Post’s sentence are valid and remain in force.