State v. Kinder

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 112,844

STATE OF KANSAS,
Appellee,

v.

JAMES KINDER,
Appellant.

SYLLABUS BY THE COURT

1.
Interpretation of the Kansas Sentencing Guidelines Act (KSGA) is a question of
law subject to unlimited review.

2.
To ascertain the legislative intent underlying particular statutory provisions,
appellate courts give effect, if possible, to the entire act. It is the court's duty, so far as
practicable, to reconcile different provisions so as to make them consistent, harmonious,
and sensible.

3.
K.S.A. 2016 Supp. 21-6603(g) defines probation in relevant part as "a procedure
under which a defendant, convicted of a crime, is released by the court after imposition of
sentence, without imprisonment except as provided in felony cases, subject to conditions
imposed by the court and subject to the supervision of the probation service of the court
or community corrections."

1
4.
Once a sentence of confinement has been completed, a defendant cannot be
sentenced to "probation" as defined by the KSGA.

5.
One exception to the general rule that an appellate court will not review a moot
issue is where the question is capable of repetition and is of public importance.

Review of the judgment of the Court of Appeals in an unpublished opinion filed December 11,
2015. Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed January 5,
2018. Judgment of the Court of Appeals dismissing the appeal is reversed. Judgment of the district court
is reversed.

Samuel Schirer, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.

Daniel G. Obermeier, assistant district attorney, argued the cause, and Jacob G. Fishman,
assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were
on the brief for appellee.

The opinion of the court was delivered by

NUSS, C.J.: The district court sentenced James Kinder to nine months'
imprisonment. While it awarded Kinder credit for his nearly 12 months of pretrial
confinement under K.S.A. 2016 Supp. 21-6615, it also imposed 18 months' probation.
Because Kinder's credited jail time actually exceeded the sentence of confinement
imposed for his crime, he argued he already served his sentence and the probation
therefore was improper.

2
 The Court of Appeals did not address whether sentencing Kinder to probation was
in error and in violation of his Double Jeopardy rights, holding his sentence was a
presumptive one under the Kansas Sentencing Guidelines Act (KSGA) and thus beyond
judicial review. State v. Kinder, No. 112,844, 2015 WL 8590406 (Kan. App. 2015)
(unpublished opinion) (citing K.S.A. 2016 Supp. 21-6820[c][1]).

We conclude Kinder is not actually challenging a presumptive sentence so review
is appropriate. We further conclude probation cannot be imposed after the full sentence of
confinement has been served. Accordingly, we reverse the lower courts.

FACTS AND PROCEDURAL BACKGROUND

The facts material to our analysis are straightforward. In Kinder's petition for our
review of the Court of Appeals' decision under K.S.A. 20-3018(b), he agrees with the
panel's recitation as follows:

"On July 29, 2013, the State charged Kinder with one count of mistreatment of a
dependent adult, a severity level 8 person felony. According to the complaint, Kinder had
been acting as a caretaker for the victim, Joyce Wilson, and he had failed to obtain
necessary medical treatment for her condition. The case proceeded in district court for
several months. On June 4, 2014, the district court entered a no-contact order prohibiting
Kinder from contacting Wilson or her family. Then, on July 21, 2014, Kinder pled no
contest to the charge. Since Kinder had no prior convictions or adjudications, the
presentence investigation report calculated his criminal history score as I, resulting in a
presumptive sentence of 7 to 9 months' imprisonment with 18 months' probation.

"The sentencing hearing occurred on September 12, 2014. The record reflects
that prior to sentencing, Kinder was held in custody on the charge for 360 days from July
26, 2013, to July 21, 2014. At the hearing, the State asked the district court to impose the
standard presumptive sentence of 9 months' imprisonment with 18 months' probation.
Among other probation conditions, the State requested that the district court continue the

3
 no-contact order. The State also noted that Kinder should receive 360 days of jail time
credit. In response to the State's argument, defense counsel stated:

'I would ask the Court to sentence Mr. Kinder to the standard sentence of
eight months. He has just four days short of 12 months already. So
basically he has completed whatever sentence he would be—he would
get. I don't think that really we even need probation since he has served
out his sentence. . . . [H]e's maxed out his sentence. I don't really think
that there's a need for probation in this case or the terms of probation.'

"At the conclusion of the hearing, the district court imposed the standard
presumptive sentence of 9 months' imprisonment and granted probation for 18 months.
The district court extended the no-contact order as a condition of probation. The district
court also awarded Kinder 360 days of jail credit. Kinder timely appealed his sentence.

"On appeal, Kinder asserts that the district court erred by sentencing him to
probation when he requested imposition of the already-served term of imprisonment. He
claims that the district court's actions were contrary to the purpose of the Kansas
Sentencing Guidelines Act (KSGA). Specifically, Kinder contends that 'a district court
cannot order him to serve a term of probation against his will.' The State argues that this
court does not have jurisdiction over the issue because Kinder received a presumptive
sentence. In the alternative, the State argues that the district court did not err by requiring
Kinder to serve probation." Kinder, 2015 WL 8590406, at *1.

ANALYSIS

Issue: The district court erred in imposing probation when the underlying sentence
of confinement already had been served.

Introduction

The panel held that Kinder's sentence was within the presumptive range for his
crime of conviction. K.S.A. 2016 Supp. 21-6803(q) ("presumptive sentence" is "the
4
sentence provided in a grid block for an offender classified in that grid block by the
combined effect of the crime severity ranking of the offender's current crime of
conviction and the offender's criminal history"). After all, the district court appeared to
follow the KSGA. For a defendant who committed a severity level 8 nondrug offense and
possessed a category of "I" criminal history, the corresponding grid block prescribed a
sentencing range of 7 to 9 months. See K.S.A. 2016 Supp. 21-6804. Moreover, under
these circumstances, the KSGA sentence was presumptive probation. K.S.A. 2016 Supp.
21-6804. Because presumptive sentences are not subject to appellate review, the panel
held it had no jurisdiction. See K.S.A. 2016 Supp. 21-6820(c)(1); State v. Huerta, 291
Kan. 831, 839-40, 247 P.3d 1043 (2011) (appellate court lacks jurisdiction to review
presumptive sentence even when constitutional infirmity in individual sentence alleged).

As discussed below, however, the question on appeal is not whether Kinder's
sentence is presumptive and thus nonreviewable. Rather, the question is more properly
characterized as whether the district court was authorized to retain control of Kinder via
probation after he had fully served his sentence, i.e., already spent more time in
"credited" confinement than the KSGA maximum of nine months. Cf. State v. Warren,
297 Kan. 881, 882-85, 304 P.3d 1288 (2013) (acknowledging exceptions to rule
prohibiting appeals from presumptive sentence when district court misunderstands its
authority).

Standard of review

Our analysis requires review and interpretation of the KSGA. Interpretation of that
statutory scheme is a question of law subject to unlimited review. State v. Eddy, 299 Kan.
29, 32, 321 P.3d 12 (2014).

5
Discussion

The State points to several parts of the KSGA to argue that probation can exist
even after a defendant's full term of incarceration has been served. So it argues by
analogy that Kinder could be ordered on probation even after completion of his
maximum term of incarceration.

As primary support, the State relies upon K.S.A. 2016 Supp. 22-3716 which
concerns procedures and court sanctions after one's arrest for violating conditions of
probation. The State contrasts the confinement limits expressly imposed by subsection
(c)(7)—any "violation sanction imposed pursuant to subsection (c)(1)(B), (c)(1)(C) or
(c)(1)(D) shall not be longer than the amount of time remaining on the offender's
underlying prison sentence"—with the lack of express confinement limits imposed by
(c)(11). The latter subsection merely provides that confinement for such probation
violations "is separate and distinct from the violation sanctions provided in subsection
(c)(1)(B), (c)(1)(C) or (c)(1)(D) and (c)(1)(E)."

The State essentially argues that (c)(7) demonstrates the Legislature knew how to
expressly limit confinement periods for probation violations to the amount remaining on
the underlying prison sentence. It reasons that since (c)(11) does not express such limits,
that subsection reflects a legislative intention to not always prohibit extending
confinement for probation violations to "longer than the amount of time remaining on the
offender's underlying prison sentence." Under the State's rationale, the court therefore can
make Kinder subject to probation for "longer than the amount of time remaining" on his
underlying prison sentence of nine months—although that time has already been served.

But other provisions of the KSGA suggest otherwise. As we stated in State v. Bee,
288 Kan. 733, 737-38, 207 P.3d 244 (2009):
6
 "In order to ascertain the legislative intent underlying particular statutory
provisions, this court must give effect, if possible, to the entire act. It is our duty, so far as
practicable, to reconcile different provisions so as to make them consistent, harmonious,
and sensible. In re Adoption of G.L.V., 286 Kan. at 1041. When a conflict exists between
a statute dealing generally with a subject and another statute dealing specifically with a
certain phase of that subject, the specific statute controls, unless it appears that the
legislature intended to make the general act controlling. State v. Williams, 250 Kan. 730,
Syl. ¶ 3, 829 P.2d 892 (1992)."

For example, K.S.A. 2016 Supp. 21-6603(g) provides the definition of the term
"probation," identifying it as:

"a procedure under which a defendant, convicted of a crime, is released by the court after
imposition of sentence, without imprisonment except as provided in felony cases, subject
to conditions imposed by the court and subject to the supervision of the probation service
of the court or community corrections." (Emphasis added.)

The balance of subsection (g) then elaborates on the definition's limited exception,
i.e., "imprisonment . . . as provided in felony cases":

"In felony cases, the court may include confinement in a county jail not to exceed 60
days, which need not be served consecutively, as a condition of an original probation
sentence and up to 60 days in a county jail upon each revocation of the probation
sentence pursuant to subsection (b)(3) of K.S.A. 2016 Supp. 21-6702, and amendments
thereto." (Emphasis added.)

See also K.S.A. 2016 Supp. 21-6604(a)(3) (regarding the court's authority to release the
defendant on probation in felony cases: "the court may include confinement in a county
jail not to exceed 60 days, which need not be served consecutively, as a condition of an
original probation sentence").

7
 These statutes indicate that outside of making confinement a condition of
probation—which is not Kinder's case—then probation is only imposed "without
imprisonment."

Somewhat similarly, subsection (e) of K.S.A. 2016 Supp. 21-6603, when defining
"parole" in the context of confinement in the county jail, provides such parole cannot be
imposed after the term of confinement has ended:

"Parole also means the release by a court of competent jurisdiction of a person confined
in the county jail or other local place of detention after conviction and prior to expiration
of such person's term, subject to conditions imposed by the court and its supervision."
(Emphasis added.)

Accordingly, neither "probation" nor "parole" as defined by the KSGA would
allow for imposition in Kinder's situation, i.e., when his sentence of confinement has
already been completed. Indeed, both statutory definitions are consistent with the
traditional definitions of those terms.

This court's decision in State v. Carr, 274 Kan. 442, 53 P.3d 843 (2002), is
illustrative. Of relevance to our analysis, it declared, "'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 . . . .'" (Emphasis added.) 274 Kan.
at 450. Additionally, "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." (Emphasis added.) 274 Kan. 442, Syl. ¶ 3.

Stated another way, the serving of the sentence is suspended in exchange for
probation. But the suspension can be lifted and the service of the sentence begun if

8
probation is violated. As the Carr court described the exchange, "[A]n 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." 274 Kan. at
451. Consequently, the Court of Appeals recently explained that probation "is a substitute
for time incarcerated." State v. Hambright, 53 Kan. App. 2d 355, 363, 388 P.3d 613
(2017) (citing Carr, 274 Kan. at 451).

The Carr court's general statements also are consistent with the definitions of
probation contained in a variety of sources. According to Black's Law Dictionary 1396
(10th ed. 2014) probation is:

"A court-imposed criminal sentence that, subject to stated conditions, releases a
convicted person into the community instead of sending the criminal to jail or prison,
usually on condition of routinely checking in with a probation officer over a specified
period of time." (Emphasis added.)

See also United States v. Ramirez, 421 F.3d 159, 164 (2d Cir. 2005) (quoting Black's
Law Dictionary [7th ed. 1999]).

The Ramirez court also quoted Webster's Third New International Dictionary 1806
(1981) which defined probation as

"'the action of suspending the sentence of a convicted offender in such a way that the
offender is given freedom after promising good behavior and agreeing to a varying
degree of supervision, to the usually imposed condition of making a report to a particular
officer or court at stated intervals, and to any other additionally specified conditions.'"
(Emphasis added.) 421 F.3d at 164.

See also Word v. Com., 41 Va. App. 496, 502, 586 S.E.2d 282 (2003) (same). See also
The American Heritage Dictionary of the English Language 1043 (1971) (Probation is:
9
"The action of suspending the sentence of one convicted of a minor offense and granting
him provisional freedom on the promise of good behavior.") (Emphasis added.).

In sum, because Kinder's sentence of confinement already has been served, there
can be no sentence to be suspended. And if there is no sentence, it obviously cannot be
exchanged for probation. See Carr, 274 Kan. at 451 (probation is a disposition alternate
to the serving of a sentence); Hambright, 53 Kan. App. 2d at 363 (probation is a
substitute for time incarcerated); see also Harris v. State, 762 N.E.2d 163, 167 (Ind. Ct.
App. 2002) (probation is a court-imposed criminal sentence that, subject to stated
conditions, releases a convicted person into the community instead of sending the
criminal to jail or prison); Aranyos v. State, 115 So. 3d 116, 120 (Miss. Ct. App. 2013)
(same).

The State argues in the alternative that we should vacate Kinder's probation and
remand for the district court to impose 12 months of postrelease supervision for his level
8 offense. See K.S.A. 2016 Supp. 22-3717(d)(1)(C). At oral arguments, Kinder appeared
to agree that postrelease supervision is required even after service of the full term of his
sentence. See State v. Gaudina, 284 Kan. 354, 368, 160 P.3d 854 (2007) ("The Kansas
Legislature mandates that inmates shall be released on postrelease supervision upon the
termination of the prison portion of their sentence."); accord State v. Williams, 298 Kan.
1075, 1080, 319 P.3d 528 (2014) (complete sentence has two components—confinement
and postrelease supervision).

We note, however, that Kinder was sentenced to probation well over 12 months
ago. So remand for imposing postrelease supervision of 12 months would be pointless.
While a similar argument could be made about the 18-month probation period that also
has now expired, i.e., making the issue of its propriety moot, we granted review and
applied a common exception to the rule that appellate courts will not review moot
10
issues—if such an issue "is capable of repetition and raises concerns of public
importance." State v. Hilton, 295 Kan. 845, 850, 286 P.3d 871 (2012).

Judgment of the Court of Appeals dismissing the appeal is reversed; judgment of
the district court is reversed.

11