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20 Kan. App. 2d 252

State v. Howard

Court of Appeals of Kansas

Decided December 9, 1994

Court of Appeals of Kansas · decided 1994-12-09

Cited by 4 later decisions — most recently September 1995

4 state decisions

Key passage — most relied on by later courts

““When a new felony is committed while the offender is incarcerated and serving a sentence for a felony or while the offender is on probation, assignment to a community correctional services program, parole, conditional release, or postrelease supervision for a felony, a new sentence shall be imposed pursuant to the consecutive sentencing requirements of K.S.A. 21-4608, and amendments thereto, and the court may sentence the offender to imprisonment for the new conviction, even when the new crime of conviction otherwise presumes a nonprison sentence. In this event, imposition of a prison sentence for the new crime does not constitute a departure.” K.S.A. 1994 Supp. 21-4603d(a).”

quoted by 1 later decision, including 21 Kan. App. 2d 32 - State v. Trimble

Relies on State v. Donlay · Memorial Hospital Ass'n, Inc. v. Knutson

Good law ✅— No negative treatment on recordhow we know

Decided 1994-12-09

View the full empirical analysis of this case →

Rulon, J.:

¶1Anthony G. Howard, defendant, appeals from the sentence the district court imposed following his guilty plea to burglary of a nonresidence, in violation of K.S.A. 1993 Supp. 21-3715(b), and theft, in violation of K.S.A. 1993 Supp. 21-3701(a). We affirm.

¶2At sentencing, the State agreed to recommend Kansas Sentencing Guidelines Act (KSGA), K.S.A. 1993 Supp. 21-4701 et seq., sentences of 20 months for both convictions, with the sentences to run concurrent with the sentence imposed on a separate unrelated charge. The parties agreed that defendant had a criminal history category of E.

¶3Defense counsel argued that the sentences for both the burglary and theft convictions were controlled by the KSGA, which called for presumptive probation. Defendant admitted he was un*253der the supervision of community corrections at the time of these offenses. The court sentenced defendant to 21 months incarceration with 24 months of post-release supervision.

¶4Defendant only appeals from the sentenced imposed on the burglary and theft convictions.

¶5Defendant argues the presumptive sentence under the KSGA in this case was probation and the court’s imposition of a prison sentence was, therefore, a dispositional departure. According to defendant, because the sentencing court failed to state on the record substantial and compelling reasons for the departure, the court erred under K.S.A. 1993 Supp. 21-4716, and this case must be remanded for resentencing. We disagree.

¶6The State agrees that defendant’s convictions fall within presumptive nonprison grid boxes under K.S.A. 1993 Supp. 21-4704 and that a court must have substantial and compelling reasons to impose a departure sentence. The State argues, however, that the sentences imposed in this case were not departure sentences under K.S.A. 1993 Supp. 22-3716(b), because defendant committed these crimes while on probation.

¶7This case involves an interpretation of the KSGA. Interpretation of a statute is a question of law. State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). Therefore, this court’s review of the case is unlimited. See Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).

¶8Burglary of a nonresidence, as defined in K.S.A. 1993 Supp. 21-3715, is an offense severity level 7, nonperson felony. The theft defendant was convicted of was a severity level 9, nonperson felony. K.S.A. 1993 Supp. 21-3701. Consequently, the presumptive sentence for defendant would be 19 to 23 months of a nonprison sanction. K.S.A. 1993 Supp. 21-4704(a). Under K.S.A. 1993 Supp. 21-4716, the district court shall impose the presumptive sentence unless the court finds substantial and compelling reasons for a departure and states those reasons on the record.

¶9K.S.A. 1993 Supp. 22-3716(b) provides that, if a defendant commits a new felony while on assignment to community corrections for a prior offense, the sentencing court shall impose consecutive sentences for the two offenses. Further, “the court *254may sentence the offender to imprisonment for the new conviction, even when the new crime of conviction presumes a non-prison sentence. Such action does not constitute a departure.” K.S.A. 1993 Supp. 22-3716(b).

¶10Defendant was assigned to community corrections for prior convictions at the time of these offenses. Therefore, the district court’s imposition of a prison sentence is this case was not a departure, and the district court did not err.

¶11Affirmed.

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