In re W.H.

41 P.3d 891, 30 Kan. App. 2d 326, 2002 Kan. App. LEXIS 206
CourtCourt of Appeals of Kansas
DecidedMarch 8, 2002
DocketNo. 87,001
StatusPublished
Cited by4 cases

This text of 41 P.3d 891 (In re W.H.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re W.H., 41 P.3d 891, 30 Kan. App. 2d 326, 2002 Kan. App. LEXIS 206 (kanctapp 2002).

Opinion

Paddock, J.:

W.H., a juvenile offender, pled guilty to the crimes of obstruction of legal process, possession of stolen property, criminal deprivation of property, domestic violence batteiy, and conspiracy to commit forgery.

All of the above crimes were committed by W.H. after July 1, 1999, with the exception of the crime of criminal deprivation of property, which W.H. committed on May 7, 1999.

At sentencing, the trial court classified W.H. as a chronic offender I as defined in K.S.A. 38-16,129(a)(3)(A), and W.H. was sentenced according to that classification. The trial court ordered that the sentences be served consecutively in a juvenile correctional facility, giving W.H. a controlling juvenile sentence of 40 months.

W.H. appeals the sentence imposed for the crime of criminal deprivation of property, claiming it was an illegal sentence under [327]*327K.S.A. 38-16,129. W.H. also appeals the order that the sentences be served consecutively.

Whether a sentence is illegal is a question of law over which our review is unlimited. State v. Sisk, 266 Kan. 41, 43, 966 P.2d 671 (1998).

An illegal sentence is a sentence imposed by a court without jurisdiction; a sentence which does not conform to a statutory provision, either in the character or the term of the punishment authorized; or a sentence which is ambiguous with respect to tire time and manner in which it is to be served. Sisk, 266 Kan. at 43 (quoting Carmichael v. State, 255 Kan. 10, 16, 872 P.2d 240 [1994]).

K.S.A. 38-16,129(a) states in part: “For the purpose of committing juvenile offenders to a juvenile correctional facility, the following placements shall be applied by the judge in felony or misdemeanor cases for offenses committed after July 1, 1999.”

“ ‘The controlling penalty provisions are those in effect at the time the offense was committed.’ [Citation omitted.]” State v. Patterson, 257 Kan. 824, 825, 896 P.2d 1056 (1995).

As even the State concedes, the sentence handed down to W.H. for the criminal deprivation of property charge was illegal. The sentence imposed was, in the framework of Sisk, not in conformity with the statutory provision. The statute plainly states it applies only to offenses committed after July 1, 1999. K.S.A. 38-16,129. The criminal deprivation of property offense was committed on May 7, 1999.

The sentence must be vacated and the case remanded for re-sentencing pursuant to the statute in effect on May 7, 1999.

Next, W.H. contends that the Kansas Juvenile Justice Code (KJJC), K.S.A. 38-1601 et seq., does not permit the trial court to order consecutive sentences.

This issue requires an interpretation of the KJJC. Interpretation of a statute is a question of law, and this court’s scope of review is unlimited. See Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).

In the journal entiy, the trial court ordered:

“Because the cases upon which Respondent is presently being sentenced represent crimes that are separate and distinct, the sentences shall be served con[328]*328secutively. However, in no case or cases shall the sentence or jurisdiction of the court in the juvenile aspects of the sentence [be] extended beyond the Respondent’s twenty-third (23rd) birthday.”

During sentencing, the trial judge explained:

“It is my decision in accordance with the standard rule that I adopted about eleven years ago that if these are separate and distinct offenses and you had the opportunity to discontinue your behavior at any time between these, then I would consider them to be separate and distinct sentences to be served. What that means my ruling is in this case that your sentences will be served consecutively meaning that the controlling term of placement with the Juvenile Justice Authority is a term of 40 months.”

The KJJC does not specifically provide for consecutive sentences. On the other hand, KJJC does not specifically prohibit consecutive sentences.

W.H. asserts the failure on the part of the legislature to provide for consecutive sentences was intentional. W.H. cites the legal maxim expressio unius est exclusio alterius. State v. Peal, 20 Kan. App. 2d 816, 821, 893 P.2d 258, rev. denied 257 Kan. 1095 (1995), translated the phrase to mean the mention or inclusion of one implies the exclusion of another. W.H. also makes comparisons between the KJJC and the Kansas Sentencing Guidelines Act (KSGA). He states the KJJC and the KSGA have similar provisions on presumptive sentences, including how to depart and appeals from departures. W.H. further contends that unlike the KJJC, the KSGA allows the trial court to issue consecutive sentences in multiple conviction cases. W.H. opines that since the legislature did not include such a provision in the KJJC, that omission must be crucial, given tire other similarities between the acts.

This case is one of first impression in Kansas. The New Jersey Supreme Court has, however, ruled on whether a juvenile can be sentenced to consecutive terms under the New Jersey Juvenile Code.

In State in Interest of J.L.A., 136 N.J. 370, 643 A.2d 538 (1994), the New Jersey Supreme Court examined whether that state’s juvenile code, which, like Kansas, is silent on consecutive sentences, authorized sentencing a juvenile who had committed two or more delinquent acts to consecutive sentences.

[329]*329The court began its analysis by noting that imposing consecutive sentences is an inherent power of the judiciary and is derived from the common law. 136 N.J. at 374. The court continued, citing cases beginning in 1957 that stood for the proposition juveniles may receive consecutive sentences although the sentencing statutes neither permit nor prohibit such sentences. 136 N.J. at 375. In State v. Horton, 45 N.J. Super. 44, 48, 131 A.2d 425 (1957), the court held that if the legislature wanted to prohibit consecutive sentences for juveniles, it would have. Instead, the statute was silent. Another case the court reviewed held such sentences do not offend the notion juveniles can be rehabilitated. 136 N.J. at 375.

In upholding the consecutive sentences imposed, the New Jersey court focused its analysis on the extent to which such sentences were consistent with the objectives of the juvenile code. 136 N.J. at 376.

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Related

State v. Quested
352 P.3d 553 (Supreme Court of Kansas, 2015)
In re W.H.
57 P.3d 1 (Supreme Court of Kansas, 2002)

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Bluebook (online)
41 P.3d 891, 30 Kan. App. 2d 326, 2002 Kan. App. LEXIS 206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-wh-kanctapp-2002.