Interpretation of a sentencing statute is a question of law,
and the standard of review is unlimited.
Criminal statutes and penalties in effect at the time of the
criminal act are controlling.
Probation is defined by K.S.A. 1992 Supp. 21-4602(3) as a
procedure whereby a defendant, after being found guilty of a
crime, is released by the court after imposition of sentence,
without imprisonment. Probation is separate and distinct from
Probation is a possibility for a person convicted of a Class
A felony. Under the facts of this case, the district court on
remand for resentencing should exercise its discretion to
consider probation on the record.
from Wyandotte District Court; Daniel A. Duncan, judge.
Rice, appellant, was on the briefs pro se.
Christopher L. Schneider, assistant district attorney, Mark
A. Dupree Sr., district attorney, and Derek Schmidt, attorney
general, were on the brief for appellee.
Rice appeals the district court's denial of his motions
to modify his sentence and to order a new presentence
investigation report (PSI) on remand from the Court of
Appeals decision vacating his original sentence.
Specifically, Rice argues the court erred in not only
declaring it had no authority to order probation but also
failing to take into account his current health issues and
efforts at rehabilitation.
Rice was not prejudiced by the court's denial of his
request for a new PSI. But we remand for that court to
consider on the record the possibility of ordering probation
during his resentencing.
and Procedural Background
was convicted by a jury in 1994 for the 1992 first-degree
premeditated murder of his wife and sentenced to life in
prison with no chance of parole for 40 years ("hard
40"). This court affirmed on direct appeal in State
v. Rice, 261 Kan. 567, 932 P.2d 981 (1997). Rice later
filed a motion to correct an illegal sentence and challenged
the wording of the jury verdict. This court affirmed the hard
40 sentence. State v. Rice, 273 Kan. 870, 46 P.3d
next sought collateral relief claiming ineffective assistance
of counsel. Following a series of remands from the Court of
Appeals to the district court and an evidentiary hearing, the
Court of Appeals panel ultimately upheld Rice's
conviction. Rice v. State, 37 Kan.App.2d 456, 154
P.3d 537, rev. denied 284 Kan. 946 (2007); Rice
v. State, 43 Kan.App.2d 428, 225 P.3d 1200 (2010);
Rice v. State, No. 110, 589, 2015 WL 4577279 (Kan.
App. 2015), rev. denied 304 Kan. 1018 (2016). But
the panel concluded that Rice's counsel provided
ineffective assistance during the penalty phase of his trial.
So it vacated his sentence and remanded for a new penalty
phase hearing and resentencing. 2015 WL 4577279, at *42.
28, 2016, the district court held a resentencing hearing.
There, the State elected not to seek the hard 40. The State
and Rice agreed only one possible sentence existed to impose:
a life sentence with the possibility of parole after 15
years. Accordingly, the court imposed life imprisonment for
the commission of first-degree murder (premeditated) in
violation of K.S.A. 1992 Supp. 21-3401, and by the authority
of and in accordance with K.S.A. 21-4501(a) (Ensley 1988).
months later Rice filed a pro se motion to modify or reduce
this sentence. He argued the court had failed to fulfill its
duty of individualized sentencing under the scheme preceding
the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et
seq. (KSGA). In particular, he claimed he should have
been given an updated PSI for the court to consider that took
into account his changed ...