Review of the judgment of the Court of Appeals in an unpublished decision filed October 20, 2006. Appeal from Johnson district court; STEPHEN R. TATUM, judge.
1. A defendant who is resentenced after serving time in prison is not entitled to credit against a postrelease supervision period for the amount of time served in prison in excess of the prison time imposed at the resentencing.
2. There is no double jeopardy violation in requiring a defendant who has been resentenced to a shorter time of imprisonment than already served to serve the full extent of a postrelease supervision period imposed at the time of resentencing without allowing a credit against the postrelease supervision period.
3. When a defendant is resentenced and required to serve the entire period of postrelease supervision without having that period credited for time served in prison in excess of the prison term imposed at resentencing, there is no equal protection violation, because the defendant is being treated the same as all other offenders subject to such resentencing and whose postrelease supervision periods are not subject to credit for time served in prison under the Kansas Sentencing Guidelines Act.
The opinion of the court was delivered by: Luckert, J.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
This case raises the question of whether time spent in prison beyond the prison term can reduce the term of postrelease supervision. The question arises after Robert Gaudina's sentence was vacated on appeal and the prison term imposed on remand was for a shorter time than the time Gaudina had already served. Gaudina seeks to credit that excess period of imprisonment against the postrelease supervision portion of his sentence. We hold Gaudina is not entitled to have the prison time credited against the postrelease supervision time and reject his statutory construction, double jeopardy, and equal protection arguments.
To place the issue in its factual context, we must consider the history of Gaudina's two prior appeals. Gaudina was convicted by a jury in May 1996 of aggravated burglary and aggravated battery. At a sentencing hearing conducted August 15, 1996, the trial court granted the State's motion for upward departure and imposed consecutive sentences that were double the maximum presumptive sentences for each conviction. The total sentence was for a prison term of 150 months with 36 months of postrelease supervision. The Court of Appeals affirmed on direct appeal in State v. Gaudina, No. 78,698, unpublished opinion filed February 18, 2000, rev. denied 269 Kan. 936 (2000) (Gaudina I). See Gaudina v. State, 278 Kan. 103, 92 P.3d 574 (2004) (Gaudina II, decision includes case's history).
Approximately 4 months after the decision in Gaudina I, the United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed. 2d 435, 120 S.Ct. 2348 (2000), and required any fact used to increase the penalty for a crime other than a previous conviction to be submitted to a jury and found beyond a reasonable doubt. This change in sentencing laws led to our Kansas decision in State v. Gould, 271 Kan. 394, 413, 23 P.3d 801 (2001), in which this court found K.S.A. 2000 Supp. 21-4716 unconstitutional on its face because it allowed a judge rather than a jury to find that aggravating factors justified an increase in the length of a sentence beyond the presumptive sentence. The Gould court also held that Apprendi would not be given retroactive effect. 271 Kan. at 414.
Subsequently, Gaudina filed a K.S.A. 60-1507 motion, arguing that his enhanced sentence should be vacated under Apprendi. The district court summarily denied the motion, and Gaudina appealed. See Gaudina II, 278 Kan. 103. His appeal was transferred to this court for consideration of the principal issue of whether providing Gaudina relief would require retroactive application of Apprendi. The Gaudina II court concluded Gaudina's case was not final at the time Apprendi was decided because the time for filing a petition for writ of certiorari had not expired. 278 Kan. at 106-07. Gaudina's sentence was vacated and his case was remanded for resentencing. 278 Kan. at 108.
On remand, Gaudina was resentenced on September 30, 2004. He received a controlling sentence of 77 months' imprisonment and 36 months' postrelease supervision. Although not substantiated by any citations to the record on appeal, Gaudina contends that his prison sentence of 77 months was completed as of January 31, 2002, meaning he served 32 months beyond his sentence. At the resentencing hearing, Gaudina argued he should receive credit toward his postrelease supervision period for this 32 months. He argued that the failure to give him such credit would violate Kansas statutes and the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.
The district court rejected Gaudina's argument:
"There is jail time, in custody time, and then there is time on probation. Probation time is not time which ordinarily the court gives credit . . . towards the sentence. The only exception is the residential center. So in terms of the state postrelease duration or state parole, if you will, the court's not going to distinguish that by any time the defendant has served in excess of the time that has now been imposed on resentencing."
Consequently, the district court refused to credit the postrelease supervision period with the excess time Gaudina spent in custody.
Gaudina appealed and a majority of the Court of Appeals upheld the district court's decision in State v. Gaudina, No. 95,854, unpublished opinion filed October 20, 2006. Gaudina raised three issues on appeal: (1) The resentencing court erred by refusing to apply jail time credit to his postrelease supervision period for the time he was incarcerated in excess of the lawful prison time as recalculated; (2) the district court's denial of credit toward Gaudina's term of postrelease supervision violated his constitutional rights under the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution; and (3) the district court's denial of credit against Gaudina's postrelease period, while granting credit to inmates who violate their postrelease conditions, denied him the constitutional right to equal protection under the law.
The majority rejected each contention. First, the majority observed that the Kansas Legislature had mandated postrelease supervision after the sentence of confinement and had not provided for time served to be credited against the period of postrelease supervision. With regard to Gaudina's double jeopardy claim, the majority determined that a similar argument was rejected in Phillpot v. Shelton, 19 Kan. App. 2d 654, 875 P.2d 289, rev. denied 255 Kan. 1003 (1994). Finally, with respect to Gaudina's equal protection argument, the majority declined to address the merits because Gaudina raised this constitutional issue for the first time on appeal. Gaudina, slip op. at 16.
Judge, now Justice, Johnson dissented and would have granted Gaudina credit for time served against what was characterized as Gaudina's "complete sentence," including credit against his postrelease supervision period. Gaudina, slip op. at 19 (Johnson, J., dissenting).
Issue 1: Is Gaudina entitled to credit his postrelease supervision period with the time he served in excess of the term of imprisonment imposed at resentencing?
In his first issue before this court, Gaudina contends that the Kansas Sentencing Guidelines Act (KSGA) permits the postrelease portion of a sentence to be served in custody and, therefore, the district court erred by denying him credit against his term of postrelease supervision.
The resolution of this issue requires this court to construe language within the relevant provisions of the KSGA. Statutory interpretation involves a question of law over which appellate review is unlimited. State v. McCurry, 279 Kan. 118, 121, 105 P.3d 1247 (2005). The fundamental rule of statutory construction is to determine the legislature's intent. We presume the legislature expressed its intent through the language of the statutory scheme. Ordinary words are to be given their ordinary meanings and technical words their technical meaning. When a statute is plain and unambiguous, an appellate court must give effect to the legislature's intent as expressed rather than determining what the law should or should not be. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). Additionally, various provisions of an act in pari materia must be construed together in an effort to reconcile the provisions so as to make then consistent, harmonious, and sensible. In re Estate of Sauder, 283 Kan. 694, 156 P.3d 1204, 1211 (2007); State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, 768, 69 P.3d 1087 (2003).
The first relevant provision of the KSGA dictates that "if the judge sentences the defendant to confinement" the judge must "pronounce the complete sentence which shall include the prison sentence, the maximum potential reduction to such sentence as a result of good time and the period of postrelease supervision." K.S.A. 2006 Supp. 21-4704(e)(2). This requirement clearly mandates and defines two segments of the bifurcated sentence: the period of confinement and the period of postrelease supervision.
Drawing a distinction between the two segments is consistent with the meaning of the terms. "Confinement," a term of ordinary meaning, is "[t]he act of imprisoning or restraining someone; the state of being imprisoned or restrained." Black's Law Dictionary 318 (8th ed. 2004). In contrast, the term "postrelease supervision" has "particular technical meaning under the [KSGA]." Fanning v. State, 25 Kan. App. 2d 469, 470, 967 P.2d 1083, rev. denied 266 Kan. 1108 (1998). It is defined by statute as "the release of a prisoner to the community after having served a period of imprisonment or equivalent time served in a facility where credit for time served is awarded as ...