State v. PostState v. Post
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Michael Post appeals from the trial court’s denial of his motion to allow visitation with C.M. during his period of incarceration. C.M. is the mother of the victim and was a witness in Post’s underlying conviction. Post was convicted of aggravated indecent liberties with a child, attempted aggravated indecent solicitation of a child, and felony obstruction of official duty. At the sentencing hearing, the trial court ordered that Post serve 73 months in prison and that he have no contact with the victim, witnesses, and C.M. The sole issue on appeal is whether the trial court has statutory authority under
Post’s convictions in this case stem from events that occurred during October 2000 when Post performed oral sex on 10-year-old T.M. (dob 12/12/89), while T.M. was in bed. T.M.’s brother, C.R. (dob 07/24/91), was in the same bed as T.M. and witnessed Post’s head going up and down near T.M.’s penis. C.R. eventually went downstairs and got their 18-year-old sister Taylor who came upstairs and talked with T.M. and C.R. about what had occurred. C.R. later went downstairs and informed their mother, C.M., who was sleeping. Apparently, at the time of these events, Post was hving with C.M. and her family.
T.M. was taken to Abilene Memorial Hospital where T.M.’s underwear was collected and swabs were taken from T.M.’s penis. Testing revealed that saliva was present in the swabs taken from T.M.’s penis. In addition, the DNA profile from the biological material on the swab was consistent with the DNA profile of Post but not consistent with the DNA profile of T.M.
Post was initially charged with aggravated criminal sodomy. At the preliminary hearing, Officer Jerry Davis indicated that C.M. had not been cooperative in the police investigation of Post. Davis revealed that when he had made arrangements to obtain a saliva sample from T.M., C.M. told him that she had contacted someone with legal knowledge who told her that she did not have to bring T.M. in for the test. Davis further revealed that he spoke with C.M. one time while she was visiting Post in jail. At that time, C.M. did not understand why Post was charged with sodomy. C.M. told Davis that Post did not molest her son. Davis testified that it was obvious that C.M. did not appreciate the fact that Post was being charged in this case.
While Post was awaiting trial, he was allowed out on bond and ordered to have no contact with the victim or witnesses. During October 2001, however, Officer Davis submitted an affidavit which showed that Post had violated his bond conditions. Davis had received information that Post was living in T.M. and C.R.’s home. Davis conducted a surveillance of the residence and saw Post being
During October 2001, Post entered into a plea agreement with the State where he pled guilty to aggravated indecent liberties with a child in violation of
At a November 2001 hearing, the trial court sentenced Post to 73 months in prison. In addition, the trial court ordered Post to have no contact with C.M., T.M., or C.R. The trial court went on to state, “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.” The trial court also ordered Post to have no contact with any children under the age of 18. These orders were included in an “order of probation” form and attached to the journal entry of judgment.
During February 2003, Post moved to allow visits from C.M. during his incarceration. Post asserted that he would not have any contact with T.M., C.R., or any other child under the age of 18. At the hearing on this motion, Post referred to C.M. as his common-law wife.
The State advised tire trial court that C.M. had taken T.M. and C.R. to visit Post in prison but such visits had been stopped. The State argued that the primary concern was how the continued contact would affect T.M. and C.R. and that the no contact order was appropriate in this case.
“[T]he Court’s going to protect this victim. And letting the natural mother—and I make no finding whether she’s a common-law wife—letting the natural mother have visitation and then [possibly] delivering messages back and forth, isn’t going to happen, and the motion is denied.
“Um, when you commit these types of felonies, and you go to prison, you lose rights. And those are [some] of the rights that he’s lost.”
On appeal, the sole issue is whether the trial court had statutory authority and thus jurisdiction to impose the no contact order on Post’s term of incarceration.
Essentially, this court must determine whether the no contact order imposed during Post’s incarceration constituted an illegal sentence. An illegal sentence is “a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in character or the term of punishment authorized, or a sentence which is ambiguous with respect to the time and manner in which it is to be served. [Citation omitted.]”
State v. Lofton,
272 Kan. 216, 217, 32 P.3d 711 (2001). Under
The question of whether the trial court imposed an illegal sentence by ordering the no contact condition during Post’s period of incarceration requires us to interpret
In interpreting
“The 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 statutoiy 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. [Citation omitted.]” Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).
“ Tn construing statutes, legislative intent is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile die different provisions so as to make them consistent, harmonious, and sensible. The court must give effect to the legislature’s intent even though words, phrases,, or clauses at some, place in the statute must be omitted or inserted.’ [Citation omitted.]” CPI Qualified Plan Consultants, Inc. v. Kansas Dept. of Human Resources, 272 Kan. 1288, 1293, 38 P.3d 666 (2002).
“Criminal statutes must be strictly construed in favor of the accused. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. [Citation omitted.]” State v. McGill, 271 Kan. 150, 154, 22 P.3d 597 (2001).
With this statutoiy interpretation framework in mind, we turn now to the language of
“(a) Whenever any person has been found guilty of a crime, the court may adjudge any of the following:
(I) Commit the defendant to the custody of die secretary of corrections if the current crime of conviction is a felony and the sentence presumes imprisonment, or die 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.
(II) impose any appropriate combination of (1), (2), (3), (4), (5), (6), (7), (8), (9) and (10).” (Emphasis added.)
Important to an interpretation of this statute,
“This article shall be liberally construed to the end that persons convicted of crime shall be dealt widi in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerousoffenders shall be correctively treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, fine or assignment to a community correctional services program whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for at least a minimum term within the limits provided by law.” (Emphasis added.)
Under the unique facts of this case, the trial court was able to impose the no contact order during Post’s incarceration by combining
We wish to emphasize that our holding is confined to the particular facts of this case. By the time of the sentencing hearing, the trial court was aware of several facts which indicated that measures needed to be taken in order to protect both T.M. and C.R. Specifically, Post had been living with C.M. and her family when he committed the sexual acts on T.M. At the preliminary hearing, Officer Davis’ testimony revealed that C.M. was uncooperative in the investigation and did not appreciate the fact that Post was being charged in this case. In addition, while Post was awaiting trial on the charges, he violated the trial court’s order to have no contact with T.M. and C.R. In fact, Davis received information that Post was living in their home. Davis also saw Post with C.M. and T.M. during this time. It is obvious that the trial court’s decision to impose the no contact order during Post’s term of incarceration was to protect T.M. and C.R. from Post.
After hearing these facts, the trial court could not simply ignore the information but, rather, was correct in looking after the interests of T.M. and C.R. by imposing the no contact order. At the hearing on the motion to allow visitation with C.M., the trial court heard additional information that C.M. had visited Post in prison
To hold otherwise in this case would allow the trial court to place a no contact order on Post while he is on probation but not while he is incarcerated. Thus, T.M. and C.R. could be protected from contact with Post while he is on probation but not while he is incarcerated. Such an interpretation of
In reaching this decision, we note this court’s decision in
State v. Chilcote,
7 Kan. App. 2d 685, 647 P.2d 1349 (1982), where this court analyzed a combination provision under the then current version of
“In applying 21-4603(2)(e), a trial court may only impose sentences which are combinations of entire subsections. The use of the word ‘appropriate’ implies that the combination of penalties under the statute should be harmonious. Thus thetrial court may not impose imprisonment, which mandates incarceration, with either probation or suspension of sentence, because to do so would be to decree mutually exclusive penalties. As we construe the statute, restitution may only be ordered in conjunction with probation or suspended sentence. It follows that incarceration coupled with restitution is not an ‘appropriate combination’ under subsection (e).” 7 Kan. App. 2d at 690.
As noted previously,
Chilcote
was cited in
Puckett v. Bruce,
276 Kan. 59, 73 P.3d 736 (2003). In that case, the defendant committed his crime during January 2001 and, therefore, was sentenced under
Puckett
calls into question the application of this court’s reasoning in
Chilcote
to
Affirmed.