State v. Carr

53 P.3d 843, 274 Kan. 442, 2002 Kan. LEXIS 547

• Court: Supreme Court of Kansas
• Decided: September 13, 2002
• Docket: 85,238
• Status: Published

Opinions

The opinion of the court was delivered by

Lockett, J.:

Defendant Timothy A. Carr claims (1) the district court’s imposition of a dispositional departure — incarceration rather than presumptive probation- — -violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and (2) the district court’s reasons for departing were not substantial and compelling. These arguments were rejected by the Court of Appeals. State v. Carr, 29 Kan. App. 2d 501, 28 P.3d 436 (2001). We granted Carr’s petition for review pursuant to K.S.A. 20-3018(b). The State did not cross-petition for review of the Court of Appeals’ finding that the district court failed to provide adequate notice of its intent to depart; thus, that issue is not before this court for review. We agree with the Court of Appeals’ conclusion that (1) Apprendi does not apply to a dispositional departure imposed under K.S.A. 2001 Supp. 21-4716 and (2) the district court’s reasons for departing were substantial and compelling.

Carr was arrested on November 23, 1999, 26 days after his release from the Youth Center in Topeka, where he had served a sentence arising from a juvenile adjudication on drug charges. Wichita police officers pulled over Carr after observing him driving without a vehicle license tag. When Carr admitted to driving on a suspended license, he was placed in custody, and the car was impounded and inventoried. A stolen revolver was found in the vehicle’s passenger compartment.

Carr was charged with criminal possession of a firearm pursuant to K.S.A. 2001 Supp. 21-4204(a)(4). He entered into a plea agreement in which the State agreed to recommend a mid-range sentence in the applicable grid box under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., no fine, and probation under the guidelines presumption. At sentencing on April 13, 2000, the district court noted that Carr had a criminal history score of E. Criminal possession of a firearm in violation of K.S.A. 2001 Supp. 21-4204(a)(4) is a severity level 8 offense. K.S.A. 2001 Supp. 21-4204(c). Neither Carr nor the State disputed the criminal history score or the offense severity level.

After soliciting comments from Carr, Carr s attorney, and the prosecutor, the district judge immediately and without notice exercised the discretion granted him under the KSGA, refused to grant Carr probation, and imposed a prison sentence of 15 months. The district judge stated that Carr was “not amenable to rehabilitation,” observing that: (1) the firearms offense occurred shortly after Carr s release from the Youth Center, (2) Carr had failed at juvenile probation, and (3) Carr had a lengthy criminal history of drug possession. The district judge authorized placement at Labette Correctional Conservation Camp (Labette). The parties made no objections. Carr appealed. The record is not clear as to whether Carr was actually placed at Labette. Carr s brief on appeal suggests he was not.

Before the Court of Appeals, Carr sought reversal of his dispositional departure sentence. Carr claimed that the dispositional departure by the district court violated his constitutional rights under Apprendi; that the district court gave inadequate notice of its intent to depart; and that the district court’s reasons for departure were not substantial and compelling.

The Court of Appeals (1) held that Apprendi did not apply to an upward dispositional departure, (2) found that the reasons for departure were substantial and compelling, and (3) vacated Carr’s sentence and remanded the case for resentencing on the basis that the district court did not provide adequate notice of its intention to depart on its own volition under K.S.A. 21-4718(b).

The primary issue before us is whether the United States Supreme Court intended Apprendi to apply to upward dispositional departures, i.e., imposing prison rather than granting probation or parole, under the KSGA. Because we are discussing a dispositional departure under the KSGA, the fact that Carr’s conviction resulted from a guilty plea rather than a juiy verdict does not change our analysis. See State v. Cody, 272 Kan. 564, 35 P.3d 800 (2001), and State v. Kneil, 272 Kan. 567, 35 P.3d 797 (2001). Carr s challenge involves a question of law, over which we have unlimited review. See State v. Crow, 266 Kan. 690, Syl. ¶ 2, 974 P.2d 100 (1999).

To support his assertion that dispositional departures and durational departures are similarly affected by Apprendi, Carr cites State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001). In Gould, this court declared the Kansas scheme for imposing upward durational departure sentences void under Apprendi. 271 Kan. 394, Syl. ¶¶ 2, 3, and 6. Carr contends that the rationale behind the holding in Gould, though couched in the context of an upward durational departure of a sentence, included dispositional as well as durational departures.

The Court of Appeals, recognizing that although Gould had concluded that the upward durational departure provision “of K.S.A. 2000 Supp. 21-4716 was unconstitutional on its face,” stated:

“[I]t is difficult to see how a dispositional departure such as Carr’s fits under the rationale of Apprendi. Pending contrary explicit guidance from the Supreme Court, we find Gould inapplicable to upward dispositional departures. It does not constitute an alternative basis for vacating the sentence in this case. Indeed, we view the Supreme Court’s post -Gould decision in State v. McKay, 271 Kan. 725, 26 P.3d 58 (2001), as implicitly supportive of our reading of Gould. In McKay, the Supreme Court reached the merits of an upward dispositional departure sentence rather than reversing it immediately as violative of the Sixth and Fourteenth Amendments to the United States Constitution.

“Furthermore, our decision on this issue appears philosophically and analytically consistent with that in State v. Conley, 270 Kan. 18, 30-35, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001), which held that a district judge’s decision to impose a hard 40 sentence did not run afoul of Apprendi. In Conley, the hard 40 sentence potentially altered the mode of service of the defendant’s fife sentence, delaying initial parole eligibility from 25 years to 40 years. Here the dis-positional departure also merely altered the mode of service of Carr’s sentence; it did not extend its length. Gould did not affect the district judge’s power to alter the mode of service of the offender’s sentence.” 29 Kan. App. 2d at 505.

The Court of Appeals looked to State v. McKay, 271 Kan. 725, 26 P.3d 58 (2001), for guidance. In McKay, the district court imposed a prison term rather than the statutory presumptive grant of probation. The Court of Appeals reversed the district court, concluding that the particular fact presented — that McKay had absconded for 2 months during the pendency of his case — did not constitute a substantial and compelling reason to impose a dispositional departure. We granted the State’s petition for review. We agreed with the Court of Appeals and vacated McKay’s sentence. 271 Kan. at 731.

McKay was decided 1 year after Apprendi and only 2 months after our decision in Gould. Apprendi was neither briefed nor argued by counsel. The dispositional departure in McKay was vacated, not upheld. Thus, the issue of whether Apprendi applied to dispositional departures was not before us.

In deciding that Apprendi did not apply to upward dispositional departures, the Court of Appeals also relied upon this court’s decision in State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001). In Conley, we found that the imposition of a hard 40 sentence based on a fact not found by the jury does not increase a defendant’s maximum sentence of life imprisonment imposed under K.S.A. 21-4706(c). The hard 40 limited the lower end of Conley’s life sentence. Thus, Conley’s hard 40 sentence violated neither the Due Process Clause of the United States Constitution nor his right to trial by jury under tire Sixth Amendment to the United States Constitution or § 5 of the Kansas Constitution Bill of Rights. Conley, 270 Kan. 18, Syl. ¶ 3.

Our reasoning in Conley was based on McMillan v. Pennsylvania, 477 U.S. 79, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986). McMillan held that facts that do not increase a defendant’s punishment beyond that authorized by statute need not be proven to a jury beyond a reasonable doubt. Because the hard 40 did not increase the length of Conley’s life sentence and because the Apprendi Court had refused to overturn McMillan, we concluded that Conley’s 40-year mandatory minimum sentence did not violate Apprendi. Conley, 270 Kan. at 32-35. Thus, the reasoning of Conley is also not dispositive of the issue at hand.

The key question is whether Apprendi applies to dispositional departures. Apprendi considered the situation of a New Jersey defendant who pled guilty to possession of a firearm. The trial court, under a separate “hate crime” statute, found by a preponderance of the evidence that Apprendi committed the crime with a purpose to intimidate the victim because of race. The trial judge, based on this finding, imposed a sentence of 12 years’ imprisonment. The departure extended Apprendi’s sentence beyond the 5 to 10 years authorized by the firearm statute. Apprendi appealed.

The Apprendi Court opened its analysis of durational departures in dramatic fashion, stating:

“At stake in this case are constitutional protections of surpassing importance: the proscription of any deprivation of liberty without ‘due process of law,’ Amdt. 14, and the guarantee that ‘[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,’ Amdt. 6. Taken together, these rights indisputably entitled a criminal defendant to ‘a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’ ” 530 U.S. at 476-77.

The United States Supreme Court then surveyed the historical role of the sentencing judge at common law. It noted that the English trial judge of the late 18th century had very litde discretion in sentencing because the substantive criminal law tended to be sanction-specific; it prescribed a particular sentence for each offense. 530 U.S. at 479. This preserved, according to the Supreme Court, “[t]he defendant’s ability to predict with certainty the judgment from the face of the felony indictment,” which “flowed from the invariable linkage of punishment with crime.” 530 U.S. at 478.

Shifting its analysis to more modern sentencing schemes, the Supreme Court reasoned:

“We should be clear that nothing in this history suggests that it is impermissible forjudges to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing a judgment within the range prescribed by statute. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case. [Citations omitted.]” 530 U.S. at 481.

Ultimately, however, the Apprendi Court concluded:

“The historic link between verdict and judgment and the consistent limitation on judges’ discretion to operate within the limits of the legal penalties provided highlight the novelty of a legislative scheme that removes the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.” 530 U.S. at 482-83.

In determining whether Carr’s assertion as to a dispositional departure is correct, it is important to note that in Apprendi, the United States Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Emphasis added.) 530 U.S. at 490. Further, “the relevant inquiry is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” 530 U.S. at 494.

We applied Apprendi to upward durational departure sentences for the first time in Gould. Gould was convicted of three counts of child abuse. The district court imposed durational departure sentences of 68 months for two of the counts, to run consecutive to each other, and a presumptive sentence of 34 months for the remaining count, to run concurrent with the other two sentences.

Gould contended that “K.S.A. 2000 Supp. 21-4716 was unconstitutional on its face” in light of Apprendi. The State argued that Apprendi did not apply in Gould’s case. According to the State, the maximum sentence allowed by law was not defined by the KSGA but was instead defined by the strictures of the “double-double” rule contained in K.S.A. 2000 Supp. 21-4720(b)(4). We rejected the State’s argument, stating:

“Under Apprendi, it does not matter how the required finding is labeled, but whether it exposes the defendant to a greater punishment than that authorized by the jury’s verdict. [Citation omitted.] Gould’s jury verdict ‘authorized’ a sentence of 31 to 34 months for each child abuse conviction. By imposing two 68-month sentences, the district court went beyond the maximum sentence in the applicable grid box and exposed Gould to punishment greater than that authorized by the jury’s verdict.” 271 Kan. at 410-11.

We then applied Apprendi and concluded:

“The Kansas scheme for imposing upward departure sentences, embodied in K.S.A. 2000 Supp. 21-4716, is unconstitutional on its face. Gould received a sentence beyond the statutory maximum based upon a court finding of certain aggravating factors found by a preponderance of die evidence. Apprendi, on the other hand, requires ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ [Citation omitted.] Any other procedure ‘is an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system.’ [Citation omitted.]” 271 Kan. at 413.

Apprendi, and likewise Gould, only involved the imposition of an upward durational departure sentence and did not encompass dispositional departures. This court must now determine whether an upward dispositional departure, i.e., imposing prison rather than granting probation or parole, like an upward durational departure sentence, increases the penalty for a crime beyond the prescribed statutory maximum, thus triggering the protections afforded in Ap-

When enacting the KSGA, the legislature restricted a sentencing judge’s discretion in imposing prison confinement and in imposing nonimprisonment custody or supervision. Under the KSGA, a sentencing judge is required to impose a presumptive sentence and in some instances a dispositional departure, i.e., grant probation, unless tihe judge finds substantial and compelling reasons to depart. K.S.A. 2001 Supp. 21-4716(a). The Kansas Legislature, when enacting the KSGA, created exceptions to the guidelines, specifically providing that although probation is presumed for a particular offense, a defendant is presumed to be sentenced to prison in other instances. See, e.g., K.S.A. 17-1267(a); K.S.A. 2001 Supp. 21-4603d(f); K.S.A. 2001 Supp. 21-4704a(g); K.S.A. 2001 Supp. 21-4704a(h); K.S.A. 2001 Supp. 21-4704a(k); K.S.A. 2001 Supp. 21-4704a(l). As a further safeguard of public safety, the legislature has provided the sentencing judge with discretion to deny the statutory presumptive grant of probation. See K.S.A. 2001 Supp. 21-4716(b). It must be noted that if the KSGA did not provide the sentencing judge with discretion to deny the statutoiy presumptive grant of probation, offenders of certain crimes would always be granted probation. Application of Apprendi to upward dispositional departures would require a jury to malee a finding beyond a reasonable doubt before any defendant falling within a presumptive probation gridbox could be denied probation.

The answer to our question requires that we analyze the difference between an upward durational departure, which increases a sentence and a dispositional departure, which determines where an individual’s sentence will be supervised.

In Hudson v. State, 273 Kan. 251, 42 P.3d 150 (2002), the defendant asserted that she was entitled to credit on her sentence for time spent on parole. Our unanimous court recognized that

“[p]arole is a privilege, not a constitutional right. Parker v. State, 247 Kan. 214, 217, 795 P.2d 68 (1990). Credit for time spent in jail in determining the service of the term of confinement is wholly a matter of statute. State v. Babcock, 226 Kan. 356, 358, 597 P.2d 1117 (1979). In Segarra [v. State, 430 So. 2d 408 (Miss. 1983)], the court stated:

‘The mere passage of days with one’s liberty in fact restricted does not necessarily count as time served on one’s sentence. What is and what is not a criminal’s expiating punishment is a creation of law. Which days count, and which days do not is likewise determined by law. The fact of restriction, no matter how real, counts for nothing unless the law says otherwise.’ 430 So. 2d at 410.

“When determining a prisoner’s term of confinement courts have relied on the analogous situation of the court’s statutory power to grant probation and whether to give credit for time spent on bail when revoking probation.

‘Just as a sentence of probation requires that some portion of the defendant’s imprisonment or fine be suspended, so parole requires the conditional forgiveness of jail time and the possibility that this jail time might be re-imposed.’ Hill [d. State], 22 P.3d at 27 [Alaska App. (2001)].

‘A person does not serve a prison sentence while on probation or parole any more than he does while free on bail. In both instances, there are certain restrictions generally on the person’s movements but the person’s condition, as the Court observed in Morrissey v. Brewer, (1972) 408 U.S. 471, 482, 92 S. Ct. 2593, 2601, 33 L. Ed. 2d 484 is “very different from that of confinement in a prison.” ’ Hall [v. Bostic], 529 F.2d at 992 [(4th Cir. 1975)].

“In the case of probation, the Kansas Court of Appeals reviewed K.S.A. 22-3716(2) (Weeks) and held that giving the court discretion to require the defendant to serve a sentence in full without regard to time spent on probation if a violation of probation is established did not violate the Double Jeopardy Clause of the Fifth Amendment. State v. Snook, 1 Kan. App. 2d 607, 609, 571 P.2d 78 (1977). The Snook court stated:

‘As the Kansas Supreme Court has indicated, however, probation represents a grace period during which the defendant has the opportunity to demonstrate that rehabilitation can be achieved without incarceration. See In re Patterson, 94 Kan. 439, 146 Pac. 1009; In re Henry Millert, Petitioner, 114 Kan. 745, 220 Pac. 509; In re McClane, 129 Kan. 739, 284 Pac. 365. The court stated in In re Millert, Petitioner, supra at 747, “The term of parole [by the court] is one of probation, offered the delinquent as a substitute for punishment in the usual way. One who accepts the substitute does so subject to all the conditions imposed by law and by the court.” When the petitioner in that case failed to satisfy all of the conditions of parole he was subject to confinement under the original sentence “precisely as though no parole had been granted.” (Id.) See also, In re McClane, supra, where the court refused to allow credit for time served in jail as a condition of probation; and Bowers v. Wilson, 143 Kan. 732, 56 P.2d 1212, where the court denied petitioner credit for time spent on probation.’ 1 Kan. App. 2d at 609.” 273 Kan. at 255-56.

We have previously concluded that a person on probation or parole is not serving a sentence. Probation from serving a sentence is an act of grace by the sentencing judge and, unless otherwise required by law, is a privilege and not a matter of right. State v. Lumley, 267 Kan. 4, Syl. ¶ 1, 977 P.2d 914 (1999). This court has repeatedly held that probation is separate and distinct from the sentence. State v. Van Winkle, 256 Kan. 890, Syl. ¶ 2, 889 P.2d 749 (1995); State v. Dubish, 236 Kan. 848, Syl. ¶ 2, 696 P.2d 969 (1985). Probation and parole are dispositions alternate to the serving of a sentence, and neither probation nor parole increase or decrease the sentence required to be imposed by statute. Cf. Hudson, 273 Kan. at 251.

The determination that probation is separate and distinct from the sentence is demonstrated by the fact that an individual can be placed on probation for more or less time than the length of his or her underlying prison sentence. See K.S.A. 2001 Supp. 21-4611. Additionally, even when an individual’s probationary term has almost been satisfied and probation is revoked, the person must still serve the entire length of the underlying prison sentence and will be denied credit for time spent on probation unless it was time spent in a county jail or a residential treatment center. See K.S.A. 21-4614a. It is also noteworthy that an individual may either accept probation and be subject to serving the entire sentence if his or her probation is revoked or reject probation and elect to serve a known sentence.

As required by K.S.A. 2001 Supp. 21-4204(c) and K.S.A. 2001 Supp. 21-4705, Carr was sentenced to serve 15 months. The district judge then found compelling reasons not to place Carr on probation, exercised discretion, and refused to grant Carr probation. See K.S.A. 2001 Supp. 21-4716. Although the judge refused to grant Carr probation, Carr’s prison sentence of 15 months was not increased.

It is important to note that no federal or state court has applied Apprendi to the question of granting dispositional departures that result in imprisonment rather than probation or parole. In making its claim that no federal or state court has refused to apply Apprendi to dispositional departures, the dissent here fails to recognize that a change in a sentencing structure to apply Apprendi protections to dispositional departures would require either a judicial decision or a legislative act. For example, the Kansas Legislature enacted, following our decision in Gould, Apprendi protections for upward durational departures. See L. 2002, ch. 170 (amending K.S.A. 2001 Supp. 21-4716 and K.S.A. 21-4718). The dissent cites no state or federal legislative act to support its broad claim that other jurisdictions provide Apprendi protections when probation is presumed but not granted.

We conclude that Apprendi applies only to upward durational departures of a sentence imposed under K.S.A. 2001 Supp. 21-4716. The distinction between probation and the imposition of a prison sentence renders the United States Supreme Court’s Apprendi decision inapplicable to a sentencing judge’s decision to impose a dispositional departure prison sentence rather than to grant probation.

As for Carr’s contention that the Court of Appeals erred in finding that the reasons for departure were substantial and compelling, we agree with the Court of Appeals. In this case, both tire frequency of Carr’s past criminal activity and the fact he was released from the youth facility such a short time before his arrest for his current crime constituted substantial and compelling reasons for departure. See Carr, 29 Kan. App. 2d at 504.

The decision of the Court of Appeals vacating Carr’s sentence and remanding for resentencing is affirmed because the district court failed to give adequate notice of its intent to depart. The judgment of the district court is reversed.

Davis, J., not participating. Brazil, S.J., assigned.