State v. Riley

915 P.2d 774, 259 Kan. 774, 1996 Kan. LEXIS 55
CourtSupreme Court of Kansas
DecidedApril 19, 1996
DocketNos. 73,232; 73,233; 73,234
StatusPublished
Cited by21 cases

This text of 915 P.2d 774 (State v. Riley) is published on Counsel Stack Legal Research, covering Supreme Court 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. Riley, 915 P.2d 774, 259 Kan. 774, 1996 Kan. LEXIS 55 (kan 1996).

Opinion

The opinion of the court was delivered by

Larson, J.:

Bobby D. Riley appeals'his 23-month sentence for forgery, contending the trial court erroneously computed his criminal history score by- utilizing two other convictions to which he pled on the same day he pled to the forgery charge.

On August 19, 1994, Riley pled no contest to three offenses which arose out of three separate criminal cases. In case No. 93 CR 3193, he pled no contest to a charge of driving with a suspended license, a severity level 9 nonperson felony. K.S.A.- 1993 Supp. 8-262(a). In case No. 94 CR 555, he pled no contest to a charge of attempted aggravated battery, a severity level 9 person felony. K.S.A. 21-3414. In case No. 94 CR 1100, he pled no contest to a charge of forgery, a severity level 8 nonperson felony. K.S.A. 21-3710(a)(3).

On September 13, 1994, Riley was sentenced for the three offenses. In the driving with a suspended license case, 93 CR 3193, Riley received a 15-month sentence based on a criminal history score of A, counting the forgery and attempted aggravated battery convictions as part of the criminal history. In the attempted battery case, 94 CR 555, Riley received a 15-month sentence based on a criminal history score of B, counting the forgery and driving with a suspended license convictions as part of'the criminal history. In the forgery case, 94 CR 1100, Riley received a 23-month sentence based on a criminal history score of A, counting the attempted aggravated battery and driving with a suspended license convic[776]*776tions as part of the criminal history. The sentences were ordered to be served concurrently.

In contending the trial court erroneously computed his criminal history score, Riley argues the trial court improperly included the convictions from the other cases to which he pled no contest at the August 19, 1994, hearing. Had the trial court not included the attempted aggravated battery conviction in his criminal history for the forgery conviction, Riley would have had a criminal history score of B and would have been subject to a maximum sentence of 20 months, absent a departure. K.S.A. 1993 Supp. 21-4704.

Whether the trial court correctly determined each conviction was to be included in the criminal history of each other conviction is a question of statutory interpretation, and our review is unlimited. See State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). The fundamental rule of statutory construction, to which all others are subordinate, is that the intent of the legislature governs if it can be ascertained. See State v. Gonzales, 255 Kan. 243, 248-49, 874 P.2d 612 (1994).

The issues Riley raises were recently decided contrary to his contentions in State v. Roderick, 259 Kan. 107, 259 P.2d 159 (1996), under the 1994 version of the Kansas Sentencing Guidelines Act (KSGA). In relevant part, Roderick provides in Syl. ¶ 4:

“The definition of ‘prior conviction’ in K.S.A. 1994 Supp. 21-4710(a) is not ambiguous. A ‘prior conviction’ includes multiple convictions entered on the same date in different cases for purposes of sentencing for any of those convictions.”

Thus, under the 1994 version of the KSGA, Riley s appeal would be meritless. Both parties rely on the 1994 version of the KSGA and the provisions unique to it. However, our review of the record reveals that Riley’s convictions were for acts occurring after July 1, 1993, but before July 1, 1994, and thus the 1993 version of the KSGA applies because “the fundamental rule is that a person convicted of a crime is given the sentence in effect when the crime was committed. See State v. Reed, 248 Kan. 792, 795, 811 P.2d 1163 (1991).” State v. Fierro, 257 Kan. 639, 649, 895 P.2d 186 (1995).

[777]*777Additionally, the parties err in relying on the 1994 amendments because, if the 1993 act would have resulted in a shorter sentence, sentencing Riley under the 1994 act would be an ex post facto violation. An ex post facto violation occurs when a new law is retroactively applied to events that occurred before its enactment and the new law disadvantages the offender affected by it. Miller v. Florida, 482 U.S. 423, 430, 96 L. Ed. 2d 351, 107 S. Ct. 2446 (1987).

The Roderick court explained in part how the 1993 version of the KSGA was materially different from the 1994 version:

“The term ‘conviction event’ was defined at K.S.A. 1993 Supp. 21-4703(c) (the guidelines definition section) as
‘one or more felony convictions occurring on the same day and within a single court. These convictions may result from multiple counts within an information or from more than one information.’
“In 1994, the legislature deleted all references to conviction events from the guidelines (from 21-4703 in L. 1994, ch. 291 § 49; from 21-4720(b)(4) in L. 1994, ch. 291, $ 59). The legislature provided that the limits on the total sentence would apply to ‘multiple convictions arising from multiple counts within an information, complaint or indictment.’ K.S.A. 1994 Supp. 21-4720(b)(4). The legislature changed a same day, single court requirement to a same information or complaint requirement to invoke the double rule limit. The change was made for the purpose of ‘limiting the application of the “double rule” limit for consecutive sentence[s] to multiple [counts] in the same case rather than all counts for which the defendant was convicted at one time, regardless of whether from different cases.’ Kansas Report on Legislative Interim Studies, p. 116 (1993).” 259 Kan. at 114.

Therefore, although Roderick was not a “multiple conviction” case under K.S.A. 1994 Supp. 21-4720(b), Riley s multiple convictions in several cases on a single day in a single court are clearly a single “conviction event” under the 1993 act.

In addition, the K.S.A. 1994 Supp. 21-4710(a) definition of a “prior conviction,” upon which the Roderick court relied in determining that prior convictions include convictions in separate cases entered the same day, was not a part of the 1993 statute. That language of the 1994 statute provides: “A prior conviction is any conviction which occurred prior to sentencing in the current case regardless of whether the offense that led to the prior conviction [778]

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Bluebook (online)
915 P.2d 774, 259 Kan. 774, 1996 Kan. LEXIS 55, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-riley-kan-1996.