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State v. Rice

Supreme Court of Kansas

November 30, 2018

State of Kansas, Appellee,
v.
Jerry D. Rice, Appellant.

         SYLLABUS BY

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

         2. Criminal statutes and penalties in effect at the time of the criminal act are controlling.

         3. 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 the sentence.

         4. 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.

          Appeal from Wyandotte District Court; Daniel A. Duncan, judge.

          Jerry 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.

          Nuss, C.J.

         Jerry 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.

         We hold 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.

         Facts and Procedural Background

         Rice 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 1155 (2002).

         Rice 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.

         On July 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).

         Two 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 ...


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