Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

24 Kan. App. 2d 131

No. 76,593

HARLAN K. COMER, Appellant, v. STATE OF KANSAS, Appellee.

SYLLABUS BY THE COURT

1. The fundamental rule of sentencing is that a person convicted of a crime is given the sentence in effect when the crime was committed.

2. When a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute.

3. Based upon clear statutory language, eligibility for sentence conversion under the Kansas Sentencing Guidelines Act (KSGA) is governed by the statutes in effect as of July 1, 1993, the effective date of partial retroactive application of the KSGA. Generally, subsequent amendments to the KSGA are not applied retroactively unless so designated by the legislature.

Appeal from Pratt District Court; ROBERT J. SCHMISSEUR, judge. Opinion filed July 18, 1997. Affirmed.

Reid T. Nelson, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, for appellant.

Kathleen W. Rein, of Stull & Rein, of Pratt, for appellee.

Before RULON, P.J., WAHL, S.J., and RICHARD M. SMITH, District Judge, assigned.

RULON, J.: Petitioner Harlan K. Comer filed a K.S.A. 60-1507 petition claiming the 1996 amendments to the Kansas Sentencing Guidelines Act (KSGA) should be applied retroactively, making him eligible for conversion. The district court denied the relief sought by petitioner. We affirm.

On July 26, 1989, petitioner entered a plea of guilty to the sale of amphetamines in violation of K.S.A. 1989 Supp. 65-4127b(b)(2) and was sentenced to 2 to 10 years' imprisonment. On September 19, 1995, petitioner filed a 60-1507 petition asking the district court to convert his sentence to a sentence under the KSGA. Based on his criminal history and crime severity level, petitioner fell into grid box 3-I. The district court found that under K.S.A. 1994 Supp. 21-4724(b)(1) and K.S.A. 1994 Supp. 21-4705(c), inmates whose sentences fell in grid block 3-I were eligible for conversion only if the substance involved in the crime was marijuana or tetrahydrocannabinol, and because petitioner's crime involved amphetamines, petitioner was not eligible.

Petitioner claims that although the district court's decision to not convert may have been correct when petitioner was originally sentenced, K.S.A. 1994 Supp. 21-4705(c) has since been amended and the amended statute should apply to petitioner's sentence.

K.S.A. 1996 Supp. 21-4705, effective July 1, 1996, states in pertinent part:

The district court here applied K.S.A. 1994 Supp. 21-4705(c). That statute reads as follows:

K.S.A. 1993 Supp. 21-4705(c) reads:

Clearly under K.S.A. 1993 Supp. 21-4705(c) (as well as K.S.A. 1994 Supp. 21-4705[c]), petitioner was not eligible for conversion.

A 1996 amendment to 21-4705(c) removed the language involving marijuana and tetrahydrocannabinol and no longer limits the sentencing court's discretion to impose an optional nonprison sentence as did the 1993 version of the statute. Consequently, the question before this court is if the amended statute should be applied to petitioner's motion to convert, thereby allowing petitioner's sentence to be converted.

Following Fierro, petitioner's crime of conviction would be converted to an analogous crime existing on or after July 1, 1993. Based on the statutes in effect at that time, petitioner's crime of conviction had a severity level of 3. Petitioner's criminal history would have been I. As such, petitioner would have been placed in grid block 3-I. Petitioner does not dispute that fact.

"The fundamental rule [of sentencing] is that a person convicted of a crime is given the sentence in effect when the crime was committed." State v. Riley, 259 Kan. 774, Syl. ¶ 3, 915 P.2d 774 (1996); see K.S.A. 21-4724(f). Because petitioner's crime of conviction is based on the statutes as they existed on July 1, 1993, his proper sentence would be the sentence in effect on that date.

"When a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute." State v. Alires, 21 Kan. App. 2d 139, Syl. ¶ 2, 895 P.2d 1267 (1995). Based upon clear statutory language, eligibility for sentence conversion under the KSGA is governed by the statutes in effect as of July 1, 1993, the effective date of partial retroactive application of the KSGA. Generally, subsequent amendments to the KSGA are not applied retroactively unless so designated by the legislature. See State v. Ford, 262 Kan. 206, 208-09, 936 P.2d 255 (1997).

In the present case, the district court relied on K.S.A. 1994 Supp. 21-4705(c) in denying petitioner's requested relief. Although the court relied on the wrong statute, it would have reached the same result using K.S.A. 1993 Supp. 21-4705(c). "When the trial court reaches the correct result based upon the wrong reason, this court will affirm the trial court." Cabral v. State, 19 Kan. App. 2d 456, Syl. ¶ 9, 871 P.2d 1285 (1994).

Affirmed.

END