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STATE v. McLAREN

June 1, 1990.

STATE OF KANSAS, Appellee,
v.
WILLIAM McLAREN, Appellant.



William McLaren appeals from the refusal of the trial court to allow withdrawal of his guilty plea to one count of felony theft, K.S.A. 21-3701 (Ensley 1981), in case No. 84 CR 501. He also appeals his jury conviction for two counts of sale of marijuana, K.S.A. 1987 Supp. 65-4127b, and the sentence imposed therefor in case No. 87 CR 128. The cases are consolidated on appeal.

McLaren raises four issues:

1. Whether the trial court erred in failing to permit appellant to withdraw his guilty plea;

  2. whether the trial court erred in failing to give the jury appellant's requested instruction on the defense of entrapment;

[14 Kan. App. 2d 450]

     

  3. whether the trial court erred in permitting evidence tending to prove appellant's involvement with drugs on other occasions; and

  4. whether during closing argument the prosecutor impermissibly commented upon appellant's post-arrest silence.

  Because we answer the first two issues in the affirmative, we need not reach the latter two.

  On August 12, 1985, appellant appeared before the trial court and, pursuant to plea negotiations, entered a plea of guilty to one count of felony theft. The record on the plea shows the following:
"THE COURT: Will the State recite the plea negotiations for the record?
"MISS WILKINSON: Defendant will be pleading to the crime as charged, we will be recommending probation and payment of restitution and I am leaving it up to the discretion of the Court what of the transportation expense to assess.
"THE COURT: You understand that you are charged with a Class D felony?
"MISS WILKINSON: We would be willing to amend that charge to a Class E felony. Technically, at the time the crime was committed that was a — theft was a D but now it's an E.
"THE COURT: You understand, Mr. McLaren, you are now charged with a Class E felony and if convicted of a Class E felony you could be sentenced to serve a minimum term of one year and a maximum term of three to five years and you may be ordered to pay a fine in lieu of such sentence or in addition to the sentence in an amount not to exceed $10,000?"
  After accepting the plea, the court imposed a sentence of one to two years and placed the appellant on probation. At the time of the commission of the offense, felony theft was a class D felony. K.S.A. 21-3701 (Ensley 1981). Between January of 1984 when the theft was committed and the time of appellant's plea, the statute was amended to make felony theft a class E felony. L. 1984, ch. 119, § 2. The effective date of the amendment was May 17, 1984, and the amendment specifically applied prospectively only. The State did attempt to amend the classification of the charge to an E felony and, as pointed out by the sentencing journal entry, the court apparently accepted that amendment and sentenced defendant accordingly.

  Because the trial court was without authority to reduce the classification of felony theft, the sentence imposed was illegal. "It has long been the rule in this state that the crime and penalty

[14 Kan. App. 2d 451]

      in existence at the time of the offense are controlling unless the legislature has given retroactive effect to any statutory changes made subsequent to the time of the commission of the crime." State v. Van Cleave, 239 Kan. 117, 122, 716 P.2d 580 (1986).

  Prior to the expiration of his probationary period, the State filed a motion to revoke appellant's probation, based in part upon the activity which led to his convictions in case No. 87 CR 128. On May 27, 1988, the trial court heard the State's motion, revoked appellant's probation, and ordered his incarceration under the original one- to two-year term. After notification by the Department of Corrections that the original sentence was improper, the trial court, on September 9, 1988, by order nunc pro tunc, modified appellant's sentence to one to five years. Appellant objected to the nunc pro tunc order and the matter was set for hearing on January 13, 1989, at which time appellant sought to withdraw his guilty plea, claiming that the plea bargain was based upon an agreement that the court impose an illegal sentence. The motion to withdraw the plea was denied, and appellant brought this appeal.

  All of this is significant because during the period appellant was on probation he was charged with and convicted of two counts of selling marijuana in case No. 87 CR 128. On May 27, 1988, the same day appellant's probation was revoked, appellant was sentenced to three to ten years on Count I of 87 CR 128 and seven to twenty years on Count II, the sentence having been ...


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