State v. Luttig

199 P.3d 793, 40 Kan. App. 2d 1095, 2009 Kan. App. LEXIS 1
CourtCourt of Appeals of Kansas
DecidedJanuary 9, 2009
Docket100,290
StatusPublished
Cited by6 cases

This text of 199 P.3d 793 (State v. Luttig) 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
State v. Luttig, 199 P.3d 793, 40 Kan. App. 2d 1095, 2009 Kan. App. LEXIS 1 (kanctapp 2009).

Opinions

Malone, J.:

The State appeals the district court’s determination of Wanda Luttig’s criminal history score following her conviction of two counts of forgeiy. Luttig had two prior forgeiy convictions. Based on Luttig’s third conviction of forgery, the district court or[1096]*1096dered her to serve 45 days in jail as a condition of probation. The issue is whether the district court used Luttig’s prior forgery convictions to enhance her applicable penalty in this case and, if so, to what extent. We affirm in part, vacate in part, and remand for further proceedings.

On February 15, 2008, Luttig pled guilty to two counts of forgery. Luttig’s presentence investigation report listed her criminal history score as category E based on three prior nonperson felonies, two of which were forgeries. Luttig objected to the inclusion of the two prior forgeries in her criminal history score to the extent that the convictions were being used to enhance her penalty in the current case.

Luttig was sentenced on March 28, 2008. The district court found that because the case was Luttig’s third forgery conviction, the statute required her to serve at least 45 days in jail as a condition of probation. Thus, the district court determined that the two prior forgery convictions enhanced the applicable penalty and could not be counted in Luttig’s criminal history. The district court stated:

“The court will find, since in the court’s view and interpretation of a statute that criminal history does not include prior convictions which enhance the applicable penalties, that in fact because of the nature of tire forgery and there is mandatory jail time on subsequent convictions, that in fact the prior convictions do enhance the penalty and therefore are not included in the criminal history. So the two prior forgeries will not be included which would change the criminal history from category E to category G.”

The district court imposed a controlling sentence of 10 months’ imprisonment and placed Luttig on probation for 18 months with the mandatory condition that she serve 45 days in jail. The State timely appeals.

The State claims the district court erred in determining Luttig’s criminal history score. Specifically, the State argues that the mandatoiy 45 days’ imprisonment as a condition of probation on a third forgery conviction does not enhance the applicable penalty. Thus, the State argues that Luttig’s two prior forgeiy convictions should have been scored as part of her criminal history.

[1097]*1097Resolution of this issue involves statutory interpretation. Interpretation of a statute is a question of law, and an appellate court’s standard of review is unlimited. State v. Ruiz-Reyes, 285 Kan. 650, 653, 175 P.3d 849 (2008).

We must examine two separate statutes under the Kansas Criminal Code. First, K.S.A. 21-3710, the forgery statute, provides in part as follows:

“(b)(1) Forgery is a severity level 8, nonperson felony.
(3) On a second conviction of a violation of this section, a person shall be required to serve at least 30 days’ imprisonment as a condition of probation, and fined the lesser of the amount of the forged instrument or $1,000.
(4) On a third or subsequent conviction of a violation of this section, a person shall be required to serve at least 45 days’ imprisonment as a condition of probation, and fined the lesser of the amount of the forged instrument or $2,500.” (Emphasis added.)

Second, K.S.A. 21-4710(d)(11), found in the Kansas Sentencing Guidelines Act (KSGA), provides as follows:

“Prior convictions of any crime shall not be counted in determining the criminal history category if they enhance the seventy level or applicable penalties, elevate the classification from misdemeanor to felony, or are elements of the present crime of conviction. Except as otherwise provided, all other prior convictions will be considered and scored.” (Emphasis added.)

The fundamental rule of statutory construction, to which all other rules are subordinate, is that the intent of the legislature governs. State v. McElroy, 281 Kan. 256, 262, 130 P.3d 100 (2006). An appellate court’s first task is to “ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007).

When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read the statute to add something not readily found therein. In such an instance, an appellate court need not resort to statutory construction. It is only if the statute’s language or text is unclear or ambiguous that an appellate court moves to the next analytical step, applying canons of construction or relying on legislative his[1098]*1098tory construing the statute to effect the legislature’s intent. In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007).

When statutes are ambiguous or unclear, an appellate court will apply canons of construction to effect the legislative intent. When construing statutes to determine legislative intent, an appellate court must consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible. State v. Breedlove, 285 Kan. 1006, 1015, 179 P.3d 1115 (2008). A specific statute controls over a general statute. In re K.M.H., 285 Kan. at 82. As a general rule, criminal statutes must be strictly construed in favor of the accused. Any reasonable doubt as to the meaning of the statute is decided in favor of the accused. Nevertheless, this rule of strict construction is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Paul, 285 Kan. 658, 662, 175 P.3d 840 (2008).

Against this backdrop, the State argues that Luttig’s 45-day prison term for her third forgery conviction mandated by K.S.A. 21-3710(b)(4) did not affect her sentence for forgery, but was merely an additional condition of probation. Because the district court always has discretion to include incarceration in a county jail for up to 60 days in felony cases as a condition of probation pursuant to K.S.A. 21-4602(c), the State argues that the mandatory 45-day term on a third or subsequent forgery conviction cannot be viewed as an enhancement of the penalty.

This argument fails under the plain language of K.S.A.

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Related

State v. Pearce
Court of Appeals of Kansas, 2015
State v. Gilley
223 P.3d 774 (Supreme Court of Kansas, 2010)
State v. Arnett
223 P.3d 780 (Supreme Court of Kansas, 2010)
State v. Luttig
199 P.3d 793 (Court of Appeals of Kansas, 2009)

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Bluebook (online)
199 P.3d 793, 40 Kan. App. 2d 1095, 2009 Kan. App. LEXIS 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-luttig-kanctapp-2009.