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State v. Preston

November 7, 2008

STATE OF KANSAS, APPELLEE,
v.
MARSHA INEZ PRESTON, APPELLANT.



Appeal from Shawnee district court; RICHARD D. ANDERSON, judge.

SYLLABUS BY THE COURT

1. By enacting K.S.A. 21-4603d(n), the legislature intended to change the existing law with respect to jail time credit for a probationer's time spent in an inpatient treatment program when that inpatient treatment is a component of a K.S.A. 21-4729 mandatory drug abuse treatment program.

2. Under K.S.A. 21-4603d(n), the amount of time that a S.B. 123 probationer spends participating in the mandatory drug abuse treatment program pursuant to K.S.A. 21-4729, including any time spent in inpatient treatment, shall not be credited as service on the underlying prison sentence.

3. The sentencing court retains the authority to modify or revise the conditions of a K.S.A. 21-4729 mandatory drug abuse treatment program in order to match the level of treatment to the offender's particular substance abuse needs at the time of modification or revision.

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

Affirmed.

Marsha Inez Preston appeals the district court's ruling that the amount of time she participated in an inpatient drug treatment program while on probation would not be credited as service on her underlying prison sentence. Acknowledging that K.S.A. 21-4603d(n) specifically precludes jail time credit for participation in the certified drug abuse treatment program mandated by K.S.A. 21-4729, Preston argues that (1) K.S.A. 21-4603d(n) should be construed as not conflicting with the jail time credit provisions of K.S.A. 21-4614a, as interpreted in State v. Theis, 262 Kan. 4, 10, 936 P.2d 710 (1997); (2) her inpatient treatment was not a part of the mandatory drug treatment program; or (3) K.S.A. 21-4603d(n)'s preclusion of jail time credit violates the equal protection guaranties of the Fourteenth Amendment to the United States Constitution and the Kansas Constitution Bill of Rights, § 1. We affirm.

Preston pled nolo contendere to possession or control of cocaine in violation of K.S.A. 2007 Supp. 65-4160(a), a drug severity level 4 felony. Preston was sentenced on May 5, 2006, to an underlying prison term of 17 months. However, in accordance with the legislative scheme known as Senate Bill 123 (S.B. 123), L. 2003, ch. 135, she was placed on community corrections probation for 18 months to complete a certified drug abuse treatment program. See K.S.A. 21-4729.

Preston failed to report to her intensive supervisor to commence probation supervision, and on June 14, 2006, the probation officer filed a motion for an order to show cause why probation should not be revoked for the failure to report. The motion requested that Preston be ordered to serve 60 days in jail, followed by inpatient treatment, and an order to comply with aftercare requirements. A show cause hearing was held on October 12, 2006. Preston stipulated that she failed to report, and the court revoked her probation. Preston was reinstated on community corrections supervision with the additional conditions of following the aftercare recommendations of the inpatient treatment facility, Valeo, and serving a 60-day jail sanction. The order of probation reinstatement read in relevant part: "[Y]ou have been placed on Community Corrections Probation on this date, October 12, 2006, for a period of 18 months per SB 123 for the offense of Drugs; Opiates or Narcotics; Possession; First Offense."

On January 8, 2007, the probation officer filed a second motion for an order to show cause, alleging that Preston failed to report for supervision and had not complied with the aftercare treatment recommendation that she attend the First Step Halfway House. At the March 26, 2007, show cause hearing, Preston stipulated to the failure to report and the failure to comply with her treatment program. Her attorney acknowledged that Preston was a "Senate Bill 123 Person," and advised the court that Preston had recommenced her drug use after being discharged from inpatient treatment and while waiting for space to open at the First Step House. The district court revoked Preston's probation and ordered her to serve her underlying prison term.

On April 2, 2007, Preston filed an objection to the proposed journal entry of sentencing because it did not include jail time credit for her inpatient treatment time at Valeo. The district court considered the objection as a motion for jail credit. The court refused to grant credit "for the approximately 44 days [Preston] was in inpatient treatment at Valeo as a condition of her SB 123 probation." Following Preston's timely appeal, the case was transferred to the Supreme Court pursuant to K.S.A. 20-3018(c).

STANDARD OF REVIEW

Preston's first two issues require us to interpret statutory provisions, invoking an unlimited review. In that regard, we are not bound by the trial court's statutory interpretation. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). Likewise, as a question of law, we exercise an unlimited review of Preston's equal ...


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