No. 99,445
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
LEROY SCHAD,
Appellant.
SYLLABUS BY THE COURT
1. Whether jurisdiction exists is a question of law over which an appellate court's scope of review is unlimited.
2. Generally, conditions of probation are not per se presumptive, and such conditions are a matter within the discretion of the sentencing court.
3. Generally, criminal statutes must be strictly construed in favor of the defendant. Any reasonable doubt as to the meaning of the statute is decided in favor of the defendant. This rule of strict construction is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.
4. Under the rule of lenity, where the intention of the legislature is unclear from the act itself and reasonable minds might differ as to its intention, a court will adopt the less harsh meaning. The rule of lenity is applied broadly to statutes that create penalties.
5. K.S.A. 21-4704b(f) does not divest an appellate court of jurisdiction to decide a defendant's challenges to the individual conditions of probation imposed by a trial court.
6. If a case may be decided on either statutory or constitutional grounds, a court, for sound jurisprudential reasons, will inquire first into the statutory question. This practice is based on the deeply rooted doctrine that a court ought not to pass on questions of constitutionality unless such adjudication is unavoidable.
7. The primary purpose of probation is the successful rehabilitation of the offender. Toward that end, courts are authorized to impose conditions and restrictions on the probationer's liberty to afford the probationer a setting conducive to the rehabilitative process.
8. Under the facts of this case, the probation conditions requiring the probationer to post signs around his house and on his car declaring his sex offender status exceeded the trial court's express and implied statutory authority where they were not reasonably related to the rehabilitative goal of probation or to the protection of the victim and society.
9. Interpretation of a statute presents a question of law over which an appellate court's scope of review is unlimited.
10. A trial court may impose a greater period of probation than the recommended terms outlined in K.S.A. 21-4611(c)(1) and (c)(2). Such a deviation is considered a departure requiring the trial court to state on the record substantial and compelling reasons to deviate from the recommended term.
11. In imposing house arrest sanctions under K.S.A. 21-4603b(d), a sentencing court may not order the deprivation of an essential activity.
12. Under K.S.A. 21-4721(c)(1), an appellate court is without jurisdiction to consider a challenge to a presumptive sentence, even if that sentence is to the highest term in a presumptive sentencing grid block.
Appeal from Stafford District Court; RON L. SVATY, judge. Opinion filed April 24, 2009. Affirmed in part, reversed in part, and remanded with directions.
Carl Folsom, III, of Kansas Appellate Defender Office, for appellant.
Joe Shepack, county attorney, and Stephen N. Six, attorney general, for appellee.
Before GREENE, P.J., GREEN and LEBEN, JJ.
GREEN, J.: After pleading no contest to one count of aggravated indecent solicitation of a child in violation of K.S.A. 21-3511, Leroy Schad was placed on 60 months' probation. The trial court imposed several probation conditions that included placing him under house arrest, forbidding him from grocery shopping, and ordering him to place sexual offender signs around his house and on his car. On appeal, Schad raises arguments relating to his probation conditions, the term of his probation, and the term of his underlying prison sentence. The State contends, however, that this court lacks jurisdiction to decide Schad's arguments under K.S.A. 21-4704b(f). We disagree with the State's contention and find that we have jurisdiction to address Schad's arguments.
First, Schad argues that the probation conditions requiring him to post signs around his house and on his car were invalid because they violated his right to privacy and his right against cruel and unusual punishment and because the trial court did not have the authority to impose the conditions. Nevertheless, when a valid alternative ground for relief exists, an appellate court need not reach the constitutional contentions of the parties. Because we reverse and remand to the trial court to sever these conditions from the order of probation on the basis that they violate our statutory scheme, it is unnecessary for us to address the constitutional law contentions.
Next, Schad contends that the trial court lacked the statutory authority to order Schad to serve 60 months of probation. We disagree. Next, Schad maintains that the trial court failed to make the necessary findings to increase his term of probation to 60 months. We agree. As a result, we remand to the trial court to determine whether there were substantial and compelling reasons to impose the 60-month term of probation. If there were not substantial and compelling reasons for the 60-month term of probation, the trial court is limited to imposing the recommended 36-month term of probation under K.S.A. 21-4611(c)(1). Next, Schad argues that the trial court erred in prohibiting him from grocery shopping as a condition of his probation. We determine that under K.S.A. 21-4603b(d), the trial court could not impose a probation condition that constituted a deprivation of an essential activity. The trial court in this case never made the necessary inquiry and appropriate findings as to whether Schad was able to obtain food by other means. As a result, we remand the case with instructions that the probation condition prohibiting Schad from grocery shopping should be severed from the order of probation unless it can be shown on rehearing that grocery shopping was not an essential activity.
Finally, Schad contends that the trial court violated his constitutional rights in sentencing him to the aggravated number in the sentencing grid box. Nevertheless, because our Supreme Court recently rejected this same argument in State v. Johnson, 286 Kan. 824, 190 P.3d 207 (2008), Schad's argument fails. Accordingly, we affirm Schad's underlying prison sentence and remand the case with instructions to sever the probation conditions requiring Schad to post signs around his house and on his car and with additional instructions concerning Schad's 60-month term of probation and the probation condition pertaining to grocery shopping.
Schad was originally charged with one count of rape and three counts of aggravated indecent liberties with a child. The charges were based upon allegations that Schad had bathed separately with each of his grandchildren, a 9-year-old female and an 11-year-old male, while they were staying overnight at his house and had touched their genitals during and following the baths. Schad admitted to officers that the touching had occurred after the baths but stated that the touching had occurred over his grandchildren's clothing and that the touching of his granddaughter had been accidental.
In exchange for Schad's no contest plea, the State amended the complaint to charge only one count of aggravated indecent solicitation of a child. At the plea hearing, the State proffered the preliminary hearing transcript and stated that the transcript would show that on the date in question, Schad invited or persuaded a child under the age of 14 to come up to "one of the bedrooms or bathrooms in house and then and there take a bath" with him.
Based on his criminal history, Schad fell within 5-I, which was a border box, on the Kansas Sentencing Guidelines Acts grid, K.S.A. 21-4704b. As a result, Schad's conviction of aggravated indecent solicitation of a child carried a presumptive sentence of 31 to 34 months' imprisonment. Before sentencing, Schad moved the trial court to make appropriate border box findings to allow him to receive probation. The trial court sentenced Schad to an underlying sentence of 34 months in prison but granted Schad's motion for probation. The trial court found that there was little chance of recidivism and that there was appropriate treatment available. The trial court ordered Schad to serve 60 months of probation. As part of the conditions of his probation, the trial court placed Schad under house arrest for the entire duration of his probation. The trial court allowed Schad to leave his home to meet with his probation officer, to participate in a sexual offender treatment program, and to drive to medical appointments.
Nevertheless, determining that Schad would not be allowed to leave his home for any other reason, the trial judge stated:
"You're going to have to figure out how to get food to your house though. Cause I'm not going to let you go get groceries. I'm not going to let you go get anything. You will have to find somebody else to do that. Basically you're going to be in prison in your house."
The trial court also ordered Schad to place signs, with letters at least 4 inches tall, stating that a "sexual predator lives here" on all four sides of his property. Moreover, the trial court ordered Schad to put stickers similar to what "campaign people" use on both sides of his car that state "sexual predator." The trial court further ordered Schad not to have contact with any children under the age of 16, including his grandchildren.
After Schad filed his notice of appeal in this case, the State moved to revoke Schad's probation for failure to comply with the conditions of his probation. The State maintained that Schad had failed to contact the appropriate program to set up his house arrest and that he had not affixed the ordered signs on his property and on his car. Schad moved to advance the case for an immediate hearing on the State's allegation of a probation violation. Schad also moved the trial court to reconsider its probation order relating to the wording on the ordered signs. In addition, Schad asked the trial court to allow him a reasonable time to find out whether his family would be able to assist him with the costs of the house arrest program. Schad requested that if no financial help could be arranged, that the trial court reconsider whether ordering him to pay the cost of the house arrest program constituted cruel and unusual punishment. Attached to Schad's motion for reconsideration was an affidavit from Schad outlining his concerns about the probation conditions.
After holding a nonevidentiary hearing, the trial court granted the State's motion to revoke Schad's probation. The trial court modified the language in its earlier order and required Schad to place signs on his property stating that a "Sex Offender Lives Here" (instead of "sexual predator lives here") and on his car stating that "Sex Offender In This Car" (instead of "sexual predator"). In addition, the trial court reinstated Schad's probation with a few new conditions. The trial court imposed a new 5-year term of probation. Moreover, the trial court specified the dates by which Schad was required to comply with the probation conditions.
Jurisdiction
On appeal, Schad raises arguments relating to the constitutionality of his probation conditions, the trial court's authority to impose the probation conditions, the trial court's authority to increase the term of his probation, and the constitutionality of his underlying prison sentence. In its appellate brief, the State does not address the merits of Schad's arguments. Instead, the only argument advanced by the State is that there is no statutory authority for this court to hear a direct appeal of Schad's sentence. Therefore, the State contends that this court must dismiss Schad's appeal for lack of jurisdiction.
Whether jurisdiction exists is a question of law over which an appellate court's scope of review is unlimited. State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275 (2007). It is well established that the right to appeal is entirely statutory and is not contained in the United States or Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statute. State v. Legero, 278 Kan. 109, 111, 91 P.3d 1216 (2004).
Moreover, the State's argument requires interpretation of K.S.A. 21-4704b(f). The interpretation of a statute presents a question of law over which an appellate court has unlimited review. State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008).
K.S.A. 21-4704b(f) specifies that the imposition of an optional nonprison sentence of an offense classified in grid blocks 5-H, 5-I, or 6-G is not considered a departure and is not subject to appeal:
"If an offense is classified in grid blocks 5-H, 5-I, or 6-G, the court may impose an optional nonprison sentence upon making the following findings on the record:
"(1) An appropriate treatment program exists which is likely to be more effective than the presumptive prison term in reducing the risk of offender recidivism; and
"(2) The recommended treatment program is available and the offender can be admitted to such program within a reasonable period of time; or
"(3) The nonprison sanction will serve community safety interests by promoting offender reformation.
"Any decision made by the court regarding the imposition of an optional nonprison sentence if the offense is classified in grid blocks 5-H, 5-I or 6-G shall not be considered a departure and shall not be subject to appeal."
Here, the trial court imposed an optional nonprison sentence for Schad's offense that was classified in grid block 5-I. Thus, under K.S.A. 21-4704b(f), the decision of the trial court regarding the imposition of an optional nonprison sentence for Schad is not considered a departure and is not subject to appeal.
Nevertheless, Schad correctly points out that this court has previously held that the constitutionality of a probation condition is subject to appellate review. Specifically, in State v. Spencer, 31 Kan. App. 2d 681, 683, 70 P.3d 1226, rev. denied 276 Kan. 973 (2003), this court stated:
"It is true that we have no jurisdiction to consider an appeal from a presumptive sentence, K.S.A. 21-4721(c)(1); State v. Flores, 268 Kan. 657, 659, 999 P.2d 919 (2000), but the issue raised relates to a constitutional violation in determining the terms and conditions of the probation granted."
Citing Spencer, this court in State v. Bennett, 39 Kan. App. 2d 890, 891, 185 P.3d 320 (2008), aff'd 288 Kan. __, 200 P.3d 455 (2009), noted that this court has allowed an appeal from a presumptive sentence when the appeal challenged an imposed condition of probation. This court noted that "[g]enerally, conditions of probation are not per se presumptive, and such conditions are a matter within the discretion of the sentencing court. See K.S.A. 21-4610(c); Spencer, 31 Kan. App. 2d at 683." Bennett, 39 Kan. App. 2d at 891. Therefore, this court rejected the State's argument that it lacked jurisdiction to consider the appellant's argument that a condition of his probation was unconstitutional. 39 Kan. App. 2d at 891. On appeal to our Supreme Court, the State did not make the same jurisdictional argument. Our Supreme Court, however, did address the merits of the appellant's argument concerning the constitutionality of his probation condition. See Bennett, 288 Kan. at __.
Moreover, Schad maintains that this court may address his arguments concerning the trial court's authority to impose a probation condition, to increase his term of probation to 60 months, and to impose the aggravated number in the grid box for his underlying prison sentence under K.S.A. 22-3504. K.S.A. 22-3504(1) provides that courts may correct an illegal sentence at any time. An illegal sentence, as contemplated by K.S.A. 22-3504, is a sentence "imposed by a court without jurisdiction; one that does not conform to the statutory provisions, either in the character or the term of the punishment authorized; or one that is ambiguous with respect to the time and manner in which it is to be served. [Citations omitted.]" State v. Jones, 279 Kan. 809, 810, 112 P.3d 123 (2005).
Most of Schad's arguments relate to whether his sentence conformed "to the statutory provisions, either in the character or the term of the punishment authorized." As a result, this court can address those arguments and determine whether Schad's sentence was illegal. Moreover, based on the previous decisions by this court, we have jurisdiction to address Schad's constitutional challenges to the terms and conditions of his probation.
Finally, K.S.A. 21-4704b(f) states that "[a]ny decision made by the court regarding the imposition of an optional nonprison sentence if the offense is classified in grid blocks 5-H, 5-I or 6-G shall not be considered a departure and shall not be subject to appeal." (Emphasis added.) While K.S.A. 21-4704b(f) does not allow an appeal from a trial court's decision regarding the imposition of a nonprison sentence, the statute says nothing about the individual conditions of probation ordered by the trial court.
Generally, criminal statutes must be strictly construed in favor of the defendant. Any reasonable doubt as to the meaning of the statute is decided in favor of the defendant. This rule of strict construction is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Paul, 285 Kan. 658, 662, 175 P.3d 840 (2008). Under the rule of lenity, where the intention of the legislature is unclear from the act itself and reasonable minds might differ as to its intention, a court will adopt the less harsh meaning. See Black's Law Dictionary 1359 (8th ed. 2004). The rule of lenity is applied broadly to statutes that create penalties. See State v. Edwards, 39 Kan. App. 2d 300, 303, 179 P.3d 472, rev. denied 286 Kan. 1181 (2008).
K.S.A. 21-4704b is a penalty statute in that it defines the punishments for nondrug felony crimes. Therefore, we apply the rule of lenity if there is any reasonable doubt as to the meaning of the provisions of K.S.A. 21-4704b. Because K.S.A. 21-4704b(f) is silent about the individual conditions of probation ordered by the trial court, we determine that the statute does not prohibit a defendant from appealing those conditions to this court. As discussed previously, conditions of probation are not per se presumptive and are a matter within the discretion of the sentencing court. See Bennett, 39 Kan. App. 2d at 891. Therefore, it is apparent that K.S.A. 21-4704b(f) does not cut off Schad's right to challenge the conditions of his probation, and this court can address Schad's arguments relating to those conditions.
Issues Not Raised to the Trial Court
Before we proceed to the merits of Schad's arguments, we point out that Schad failed to object to the signage conditions on this basis at the trial court level. Generally, issues not raised before the trial court cannot be raised on appeal. State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003).
Nevertheless, there are several exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal, including the following: (1) that the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) that consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) that the judgment of the trial court may be upheld on appeal despite its reliance on the wrong ground or assignment of a wrong reason for its decision. State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008). We will address Schad's arguments under the first exception because the issues involve purely legal questions. See State v. Poulton, 286 Kan. 1, 5, 179 P.3d 1145 (2008).
Signage Conditions
On appeal, Schad first challenges the constitutionality of the conditions of probation requiring him to post the signs around his house and on his car letting the public know that he is a sex offender. Schad raises two constitutional arguments: (1) that the probation conditions impermissibly restricted his right to privacy without bearing a reasonable relationship to the rehabilitative goals of probation, the protection of the public, and the nature of the offense; and (2) that the probation conditions constituted cruel and unusual punishment.
In support of his argument, Schad cites several cases where appellate courts have applied a statutory scheme in determining whether a trial court had the authority to order these types of conditions. See People v. Meyer, 176 Ill. 2d 372, 680 N.E.2d 315 (1997); State v. Muhammad, 309 Mont. 1, 43 P.3d 31 (2002); State v. Burdin, 924 S.W.2d 82 (Tenn. 1996). Nevertheless, we do not need to reach Schad's constitutional arguments because we can consider whether the trial court had the statutory authority to impose the signage conditions.
The United States Supreme Court has stated that "if a case may be decided on either statutory or constitutional grounds, [a court], for sound jurisprudential reasons, will inquire first into the statutory question." Harris v. McRae, 448 U.S. 297, 306-07, 65 L. Ed. 2d 784, 100 S. Ct. 2671 (1985). This practice is based on the deeply rooted doctrine that a court "ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable." Spector Motor Co. v. McLaughlin, 323 U.S. 101, 105, 89 L. Ed. 101, 65 S. Ct. 152 (1944); see also Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 11, 159 L. Ed. 2d 98, 124 S. Ct. 2301 (2004) ("Always we must balance 'the heavy obligation to exercise jurisdiction,' [citation omitted] against the 'deeply rooted "commitment" not to pass on questions of constitutionality' unless adjudication of the constitutional issue is necessary. [Citations omitted.]"); Gay Rights Coalition v. Georgetown Univ., 536 A.2d 1, 16 (D.C. 1987); Caron v. Town of North Smithfield, 885 A.2d 1163, 1165 (R.I. 2005) ("[T]his court has on many occasions held that it will not decide a case on constitutional grounds if it otherwise can be decided."). In this case, where there is a valid alternative statutory ground for relief, we need not reach Schad's constitutional assertions.
Turning now to the merits of this issue, we note that the probation condition in Burdin is very similar to the probation condition requiring Schad to post signs around his house. Specifically, in Burdin, the trial court required the defendant to erect a 4-foot by 8-foot sign, stating: "Warning, all children. [Defendant] is an admitted and convicted child molester. Parents beware," as a condition of his probation. 924 S.W.2d at 84. The defendant argued that the probation condition was not authorized by the sentencing act effective in that state. On the other hand, the State argued that the condition was authorized under the sentencing act and that it was reasonably related to the purpose of the defendant's sentence.
In addressing the parties' arguments, the Tennessee Supreme Court looked to the statutes setting forth the principles of sentencing and the trial court's authority to impose probation conditions. The court noted that the enumerated probation conditions in the statute relating to the trial court's authority to impose probation conditions were closely related to societal duties, focused on the offender and the people charged with the offender's supervision, and offered no dramatic departures from the traditional principles of rehabilitation. The court stated that the primary goal of probation, under the sentencing act and the decisions of its appellate courts, was rehabilitation of the defendant. 924 S.W.2d at 86.
The Tennessee Supreme Court rejected the State's argument that the trial court had the authority to impose the probation condition under the section of the statute allowing the trial court to order a defendant to "[s]atisfy any other conditions reasonably related to the purpose of the offender's sentence and not unduly restrictive of the offender's liberty, or incompatible with the offender's freedom of conscience or otherwise prohibited by this chapter." 924 S.W.2d at 85. Determining that the subsection did not give the trial court unlimited discretion to impose conditions of probation, the Tennessee Supreme Court stated:
"[The subsection] cannot be read as granting unfettered authority to the courts to impose punishments which are beyond the bounds of traditional notions of rehabilitation. The consequences of imposing such a condition without the normal safeguards of legislative study and debate are uncertain. Posting the sign in the defendant's yard would dramatically affect persons other than the defendant and those charged with his supervision. In addition to being novel and somewhat bizarre, compliance with the condition would have consequences in the community, perhaps beneficial, perhaps detrimental, but in any event unforeseen and unpredictable. Though innovative techniques of probation are encouraged to promote the rehabilitation of offenders and the prevention of recidivism, this legislative grant of authority may not be used to usurp the legislative role of defining the nature of punishment which may be imposed. The power to define what shall constitute a criminal offense and to assess punishment for a particular crime is vested in the legislature. [Citations omitted.]" 924 S.W.2d at 87.
The Tennessee Supreme Court found that the probation condition was not expressly or implicitly authorized by the sentencing act. 924 S.W.2d at 87.
Similarly, appellate courts in other states have declared probation conditions requiring defendants to post signs around their houses or on their car to be invalid. In Muhammad, 309 Mont. at 3, the trial court imposed a probation condition requiring the defendant to post signs at each entrance of his residence, stating: "CHILDREN UNDER THE AGE OF 18 ARE NOT ALLOWED BY COURT ORDER.'" The defendant argued that the condition exceeded statutory parameters regarding the dissemination of information concerning sexual offenders. In addressing the defendant's argument, the Montana Supreme Court looked to a Mont. statute, Code Ann. § 46-18-202(1)(e) (1997), which provided that "the sentencing judge may impose any condition 'reasonably related to the objectives of rehabilitation and the protection of the victim and society.'" 309 Mont. at 11. The Montana Supreme Court noted that the majority of jurisdictions that had examined probation conditions requiring the placement of signs on defendants' property had concluded that such conditions were not reasonably related to the goals of rehabilitation and the protection of society. 309 Mont. at 11.
In agreeing with the majority of jurisdictions that such signage conditions exceeded express or implicit statutory authority, the Montana Supreme Court stated:
"We agree with the majority of jurisdictions holding that the imposition of such conditions exceeds express or implicit statutory authority granted to trial courts, as the requirement is not reasonably related to serve the goals of rehabilitation and the protection of the victim and society. Therefore, we conclude that the condition requiring the placement of signs at every entrance of Muhammad's residence violates § 46-18-202(1)(e), MCA (1997). This condition, as is the banishment condition, is unduly severe and punitive to the point of being unrelated to rehabilitation. As noted by other jurisdictions, the effect of such a scarlet letter condition tends to over-shadow any possible rehabilitative potential that it may generate. Moreover, the District Court imposed less restrictive means to rehabilitate Muhammad and to protect the victim and society, such as requiring that he obtain sexual offender treatment, have no contact with the victim or her family and register as a sexual offender and as a violent offender, which permits the agency that Muhammad is registered with to disseminate his name to the public with the notation that he is a sexual offender." 309 Mont. at 12.
The Montana Supreme Court vacated the signage condition based upon its determination that the condition was not reasonably related to the goals of rehabilitation and the protection of the victim and society in violation of the statute. 309 Mont. at 12.
In Meyer, 176 Ill. 2d at 373, the Illinois Supreme Court determined that a probation condition requiring the defendant to erect a sign that said: "Warning! A Violent Felon lives here. Enter at your own Risk!" was unreasonable and not authorized by its Corrections Code. Under Section 5-6-3(b) of the Illinois Unified Code of Corrections, 730 ILCS 575-6-3(b) (West 1994) the trial court was authorized to impose 16 permitted conditions of probation "'in addition to other reasonable conditions.'" 176 Ill. 2d at 377, 378. The State argued that the signage condition was a reasonable condition of probation because it was consistent with the permissible conditions listed in section 5-6-3(b) and furthered the goals of probation.
In rejecting the State's argument, the Illinois Supreme Court stated:
"We hold that section 5-6-3(b) of the Code did not authorize the trial court to require the sign as a condition of the defendant's probation. The sign contains a strong element of public humiliation or ridicule because it serves as a formal, public announcement of the defendant's crime. Thus, the sign is inconsistent with the conditions of probation listed in section 5-6-3(b), none of which identify public notification or humiliation as a permissible condition. Further, we determine that the sign may have unpredictable or unintended consequences which may be inconsistent with the rehabilitative purpose of probation." 176 Ill. 2d at 382.
The Illinois Supreme Court further noted that the nature and location of the sign were likely to have an adverse effect on innocent individuals who might reside with the defendant. 176 Ill. 2d at 382. Determining that the signage condition was unreasonable under its corrections code, the Illinois Supreme Court stated:
"The judicially developed condition in the case at bar does not reflect present penological policies of this state as evidenced by our Unified Code of Corrections. The authority to define and fix punishment is a matter for the legislature. [Citation omitted.] The drastic departur