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