STATE OF KANSAS, Appellee, v. JOSEPH L. SWAZEY, III, Appellant.
No. 112,351
Court of Appeals of Kansas
filed October 2, 2015.
357 P.3d 893
Before Hill, P.J., Buser, J., and William R. Mott, District Judge, assigned.
Opinion
MOTT, J.: Joseph L. Swazey, III, appeals his sentence for one count of possession of methamphetamine and one count of fleeing or attempting to elude a police officer. He argues the district court imposed an illegal sentence by sentencing him to prison instead of drug treatment pursuant to
Facts
On June 26, 2014, Swazey pled no contest to one count of possession of methamphetamine and one count of fleeing or attempting to elude a police officer. The district court accepted his pleas and found him guilty of both offenses. Prior to sentencing, Swazey filed a motion seeking a downward dispositional or durational departure. In it, he requested that he be sentenced either to probation and drug treatment or, alternatively, to a term of 24 months’ imprisonment. Swazey‘s criminal history placed him in drug grid block 5-C, a border box.
Swazey‘s sentencing hearing was held on July 25, 2014. During the hearing, Swazey‘s attorney requested that Swazey receive “Senate Bill 123 treatment,” referring to drug treatment. The district court denied this request and sentenced him to a controlling durational departure sentence of 24 months in prison. Swazey appeals his sentence.
An illegal sentence may be corrected at any time
Swazey argues that
“An ‘illegal sentence’ is: (1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in character or term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served.” State v. Taylor, 299 Kan. 5, 8, 319 P.3d 1256 (2014).
Whether a sentence is illegal is a question of law subject to de novo review by this court. Kelly, 298 Kan. at 975.
The optional nonprison sanction statute vs. the mandatory drug treatment statute
Swazey argues that the nonprison sanction outlined in
“(b) As a part of the presentence investigation pursuant to
K.S.A. 2014 Supp. 21-6813 , and amendments thereto, offenders who meet the requirements of subsection (a), unless otherwise specifically ordered by the court, shall be subject to:(1) A drug abuse assessment which shall include a clinical interview with a mental health professional and a recommendation concerning drug abuse treatment for the offender; and
(2) a criminal risk-need assessment. The criminal risk-need assessment shall assign a high or low risk status to the offender.
“(c) If the offender is assigned a high risk status as determined by the drug abuse assessment performed pursuant to subsection (b)(1) and a moderate or high risk status as determined by the criminal risk-need assessment performed pursuant to subsection (b)(2), the sentencing court shall commit the offender to treatment in a drug abuse treatment program until the court determines the offender is suitable for discharge by the court. The term of treatment shall not exceed 18 months. The court may extend the term of probation, pursuant to subsection (c)(3) of
K.S.A. 2014 Supp. 21-6608 , and amendments thereto. The term of treatment may not exceed the term of probation.”
In summary, the statute provides that an offender should receive a drug abuse assessment and a criminal risk-need assessment as part of his or her presentence investigation unless a court specifically orders otherwise. If the offender is assigned a high risk status by the drug abuse assessment and either a moderate or high risk status by the criminal risk-need assessment, then “the sentencing court shall commit the offender to treatment in a drug abuse treatment program until the court determines the offender is suitable for discharge by the court,” but in no case longer than 18 months. (Emphasis added.)
This mandatory statutory language is at odds with
“(1) An appropriate treatment program exists which is likely to be more effective than the presumptive prison term in reducing the risk of offender recidivism; and
(2) the recommended treatment program is available and the offender can be admitted to such program within a reasonable period of time; or
(3) the nonprison sanction will serve community safety interests by promoting offender reformation.”
The most fundamental rule of statutory interpretation is that the intent of the legislature governs if that intent can be ascertained. This court must first attempt to ascertain legislative intent by reading the language of the statute and giving common words their ordinary meanings. When a statute is plain and unambiguous, this court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Cady v. Schroll, 298 Kan. 731, 738-39, 317 P.3d 90 (2014). With any perceived ambiguity, this court must determine if it is possible to interpret the provisions of the various statutes in play in a way that renders them compatible, not contradictory. State v. Van Hoet, 277 Kan. 815, Syl. ¶ 2, 89 P.3d 606 (2004). Here, when giving common words their ordinary meanings, there does appear to be an ambiguity in the statutes.
There is no way for this court to reconcile the conflicting language of these sentencing statutes. If a sentencing court is required to commit an offender to treatment in a drug abuse program, there is no discretion. If a sentencing court is allowed discretion on the issue, there is no requirement. It should be noted that we have looked at the entirety of these statutes in an attempt to reconcile them and give effect to all of their provisions. But what this court found in the text actually cuts against the position of the State. There is evidence in
The State argues that no ambiguity exists between
The State also argues that construing
The State also argues that it would be nonsensical for a sentencing statute to mandate drug treatment in cases where an individual‘s drug abuse and criminal risks are elevated, yet allow a district court to impose a prison sentence on a low risk offender. There is nothing absurd or unreasonable about targeting a certain population for drug treatment. Further, a recent article in the University of Kansas Law Review cited research indicating that drug courts in other jurisdictions tend to be most effective for high risk, high need drug offenders. Comment, A Better Way: Rethinking SB 123 Probationary Drug Treatment in Kansas, 62 U. Kan. L. Rev. 1365, 1376 (2014). This is one plausible reason to target high risk offenders in Kansas. It is not our place to question the wisdom of legislative policy in the process of interpreting statutes; we are duty bound to operate within the framework of the legislature‘s words.
Finally, since the legislature has permitted the existence of conflicting statutory
The need for factual findings regarding the raw LSI-R score on remand
In this case, Swazey completed a drug abuse assessment referred to as a SASSI. It indicated that Swazey had a “high probability of having a substance dependence disorder.” Although this finding does not directly correspond with the statutory term “high risk,” Swazey‘s results appear to qualify him for treatment under
In sum, the record is devoid of any evidence establishing that Swazey was assigned a moderate or high risk status by the LSI-R. The district court did not make any explicit findings on that point either. If Swazey‘s LSI-R score placed him in the moderate or high risk category, then he was entitled to mandatory drug treatment and probation rather than the prison sentence he received. Given that the district court did not consider the mandatory provisions of
Sentence vacated; remanded with directions.