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Abasolo v. State

June 22, 2007

ANDREA I. ABASOLO, APPELLANT,
v.
STATE OF KANSAS, APPELLEE.



Appeal from Sedgwick district court, CLARK V. OWENS II, judge. Judgment of the Count of Appeals reversing district court is affirmed. Judgment of the district court is reversed.

SYLLABUS BY THE COURT

1. Interpretation of a sentencing statute is a question of law, and the appellate court's standard of review is unlimited.

2. The general rule is that a criminal statute must be strictly construed in favor of the accused, which simply means that words are given their ordinary meaning. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.

3. A criminal sentence is effective upon pronouncement from the bench; it does not derive its effectiveness from the journal entry. A journal entry that imposes a sentence at variance with that pronounced from the bench is erroneous and must be corrected to reflect the actual sentence imposed.

4. Under the plain language of K.S.A. 2006 Supp. 22-3716(b), the district court, upon revoking probation, may impose the defendant's original sentence or any lesser sentence.

The opinion of the court was delivered by: Davis, J.

Review of the judgment of the Court of Appeals in 36 Kan. App. 2d 802, 145 P.3d 928 (2006).

This is a case brought under K.S.A. 60-1507. Andrea Abasolo pled guilty to several drug-related charges. Abasolo was sentenced to a controlling sentence of 52 months' imprisonment, but the district court granted a departure sentence, placing her on probation. At a probation violation hearing, the district court revoked Abasolo's probation and announced that her sentence was 36 months' imprisonment. However, the journal entry from the probation violation hearing stated that Abasolo's sentence was for a term of 52 months.

Abasolo filed a motion under K.S.A. 60-1507 to correct the journal entry to reflect the sentence pronounced at the probation violation hearing. The district court denied Abasolo's motion, stating that it had never intended to reduce Abasolo's sentence at the hearing. The Court of Appeals reversed without oral argument, finding that the district court had the authority to impose a reduced sentence at the probation violation hearing and that a pronouncement from the bench of a sentence controls when it is at variance with the journal entry. Abasolo v. State, 36 Kan. App. 2d 802, 805, 145 P.3d 928 (2006). We affirm.

Facts

In 2002, Andrea Abasolo pled guilty to four counts of sale of cocaine, three counts of no tax stamp, and one count of delivery of a simulated controlled substance. The plea agreement provided the following language:

"Contingent upon a successful plea of guilty as charged, the State will recommend that the Court impose the high number in the appropriate Sentencing Guidelines Grid Box for each count and run counts 1 and 5 [both for sale of cocaine] consecutive and the remaining counts concurrent. The State will further not oppose Defendant's request for border box findings so long as Defendant has obtained a drug and alcohol evaluation prior to sentencing and can provide a basis for such findings. The Defendant is free to argue for alternative disposition."

The district court sentenced Abasolo to 52 months' imprisonment but granted a downward durational departure to 18 months' probation. This 52-month period was determined by the sentences for Counts 1 and 5, which were 36 and 16 months respectively, running consecutively; the sentences for the remaining counts ran concurrently according to the plea agreement.

Less than a month after the court granted her probation, Abasolo violated the terms of that probation by committing the offense of larceny. At the probation violation hearing, Abasolo stipulated that she had violated the terms of probation; however, Abasolo requested that the court place her in a residential community corrections facility rather than sentence her to prison. Upon hearing argument from both parties, the district court revoked Abasolo's probation and sentenced her to a term of imprisonment, stating:

"I'm going to revoke the probation previously granted and order her [Abasolo] to serve her sentence in this case. Because it was a departure sentence, I had to make special findings to give her a chance; and she showed how amenable she was to probation by going on out and stealing almost immediately after being placed on probation.

"So, I'm going to order her to serve her sentence. It is 36 months, minus 15 percent for good time credit, presuming she earns that while in custody.

"She will also receive credit for any time she's previously been in custody in this case.

"Since this is a presumptive imprisonment case, she will have post-release ...


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