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State v. Paul

February 1, 2008; as amended February 14, 2008

STATE OF KANSAS, APPELLEE,
v.
DAUBIN PAUL, APPELLANT.



Review of the judgment of the Court of Appeals in an unpublished opinion filed January 12, 2007. Appeal from Saline district court; DAN D. BOYER, judge. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

SYLLABUS BY THE COURT

1. The interpretation of a statute is a question of law over which this court has unlimited review.

2. When called upon to interpret a statute, the intent of the legislature expressed through the language in the statute governs. When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it.

3. When interpreting statutes, ordinary words are given their ordinary meanings. A statute should not be read to add language that is not found in it or to exclude language that is found in it.

4. Where the statutory provision or language is ambiguous, that is, where the statute contains provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its language and leaves us generally uncertain which one of two or more meanings is the proper meaning, we must resort to maxims of construction. The fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained.

5. 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. Nevertheless, this rule relating to strict construction of criminal statues is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.

6. There were sound reasons for Kansas courts' interpretation of the Habitual Criminal Act (HCA), not the least of which involved a recognition of judicial expressions of the purpose, objective, and philosophy of our habitual criminal statute. However, the purposes, objectives, and philosophy of criminal sentencing in Kansas have been radically altered with the enactment of the Kansas Sentencing Guidelines Act (KSGA). We now look to those guidelines for resolution of sentencing questions, not to judicial expressions of historical sentencing philosophy. The interpretations of the HCA have no place in our interpretation of the KSGA or the provisions of K.S.A. 2006 Supp. 65-4161.

7. Although the KSGA in K.S.A. 21-4710(a) deals with a defendant's criminal history, the general definition of prior conviction contained in that section makes no reference to criminal history. Prior conviction is defined as any conviction, other than another count in the current case which was brought in the same information or complaint or which was joined for trial with other counts in the current case which occurred prior to sentencing in the current case regardless of whether the offense that led to the prior conviction occurred before or after the current offense or the conviction in the current case.

8. When a party on appeal does not cite to any portion of the record that would support his or her claim and therefore fails in his or her duty to designate a record sufficient to establish the claimed error, the claim of alleged error fails.

9. For offenses committed on or after July 1, 1993--and thus subject to the KSGA and not the HCA--the definition of prior conviction included in the KSGA in the context of criminal history also applies to the determination of an offense's criminal severity level unless the legislature specifically indicates a contrary intent.

10. The plain language of K.S.A. 2006 Supp. 65-4161(c) provides that if at the time a person violates that section, he or she has two or more prior convictions under the Controlled Substances Act, K.S.A. 65-4101 et seq., that person shall be guilty of a drug severity level 1 felony. The statute does not provide any other requirement with regard to the timing of the previous convictions in relation to one another.

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

Daubin Paul was convicted in 2005 of one count of sale of methamphetamine and one count of possession of drug paraphernalia. The trial court determined that his sale of methamphetamine conviction was a severity level 1 drug felony under K.S.A. 2006 Supp. 65-4161(c) based upon two similar convictions finalized in 1999. Paul argued that the two 1999 offenses qualified as only one prior offense because both convictions occurred on the same date. The Court of Appeals affirmed in a per curiam opinion. State v. Paul, No. 95,105, unpublished opinion filed January 12, 2007. We granted Paul's petition for review.

Facts

On May 13, 2005, Paul was convicted in Saline County of one count of sale of methamphetamine and one count of possession of drug paraphernalia based upon conduct that occurred on July 20, 2004. Defendant acknowledges, and the record establishes, that defendant was twice convicted in 1999 of felony drug convictions "under this section," as specified in K.S.A. 65-4161: an August 30, 1999, conviction for sale of a stimulant (Saline County Case No. 99 CRM 602) and an August 30, 1999 conviction for possession of a stimulant with intent to sell, deliver, or distribute (Saline County Case No. 99 CRM 613). Although the two convictions were finalized on the same day, those convictions resulted from separate conduct occurring on separate days in 1999 and were charged in separate complaints.

The trial court determined that the defendant's present drug conviction was a severity level 1 drug felony under K.S.A. 2006 Supp. 65-4161(c) based upon his two similar convictions finalized in 1999. Paul unsuccessfully argued that his present drug conviction could only be a severity level 2 felony drug conviction under K.S.A. 2006 Supp. 65- 4161(b), because the two prior convictions occurred on the same day and may therefore only be counted as one prior conviction. Paul relied upon State v. Wilson, 6 Kan. App. 2d 302, 627 P.2d 1185, aff'd 230 Kan. 287, 634 P. 2d 1078 (1981), a decision by the Court of Appeals and affirmed by this court interpreting the provisions of the Kansas Habitual Criminal Act (HCA), K.S.A. 21-4504(2), as it existed prior to the enactment of the Kansas Sentencing Guidelines Act (KSGA).

Paul raised several additional claims of error before the Court of Appeals. However, his petition for review from the Court of Appeals' decision affirming his convictions and sentence identifies only the issue of the appropriate severity level for his conviction for sale of methamphetamine. In addition to his argument on this issue before the Court of Appeals, Paul claims that the decision in his case is inconsistent with another published decision of the Court of Appeals, State v. Ruiz-Reyes, 37 Kan. App. 2d 75, 149 P.3d 521 (2007), which was decided on the same day. We granted review in Ruiz-Reyes and decide it together with this case on this day. Our decision in Ruiz-Reyes demonstrates that no such inconsistency exists between the cases, as the decisions in both cases are based on the applicable plain language of 65-4161. See State v. Ruiz-Reyes, (No. 95,056, this day decided).

Standard of Review

Resolution of this case turns on our interpretation of K.S.A. 2006 Supp. 65-4161, a self-contained habitual criminal statute that sets forth the conditions under which the criminal severity level of a conviction will be enhanced at sentencing. "The interpretation of a statute is a question of law over which this court has unlimited review." State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).

When called upon to interpret a statute, the intent of the legislature expressed through the language in the statute governs. When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007). Ordinary words are given their ordinary meanings. A statute should not be ...


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