State v. Walls

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NOT DESIGNATED FOR PUBLICATION

No. 116,027

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JOHN KEITH WALLS,
Appellant.

MEMORANDUM OPINION


Appeal from Butler District Court; DAVID A. RICKE, judge. Opinion filed June 23, 2017.
Sentence vacated and remanded with directions.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Joseph M. Penney, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before BUSER, P.J., PIERRON and STANDRIDGE, JJ.

Per Curiam: Keith John Walls asserts two claims of error on appeal: (1) that the
district court abused its discretion by refusing him access to his Level of Service
Inventory-Revised (LSI-R) assessment, which the court relied on in deciding the
conditions of probation to impose on him; and (2) that the district court deprived him of
his constitutional right to due process of the law by refusing him access to his LSI-R
assessment, which the court relied on in deciding the conditions of probation to impose
on him. For the reasons stated below, we vacate the sentence and remand the case for
resentencing with directions to allow Walls access to the complete diagnostic LSI-R
assessment and report that was administered to him prior to resentencing.
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FACTS

Walls pled no contest to criminal threat, in violation of K.S.A. 2016 Supp. 21-
5415(a)(1), a severity level 9 person felony. Walls' criminal-history score of "H" made
his presumptive sentence for the crime a probation sentence. At sentencing, the LSI-R
assessment conducted in conjunction with Walls' presentence investigation indicated that
Walls was a high-risk, high-needs probation candidate. Based on this assessment, the
court could consider ordering Walls' probation be supervised by community corrections
instead of court services. See 2016 Supp. K.S.A. 75-5291(a)(2)(A) (court shall limit
"placement of offenders in a community correctional services program" to adult felony
offenders who "are determined to be moderate risk, high risk or very high risk by [the
LSI-R] assessment tool").

In opposition to supervision by community corrections, Walls argued that the facts
in the presentence investigation report established he was not a high-risk, high-needs
probation candidate as he had no violent criminal history, no alcoholism or drug problem,
and previously had committed only nonviolent misdemeanor offenses. Through his
attorney, Walls asked to review a copy of the completed LSI-R administered to him. In
response, Walls was provided a copy of the cover page of his LSI-R assessment report.
Arguing that the cover page only reflected numeric scores under generalized areas, Walls'
attorney requested to review a copy of the entire LSI-R administered to Walls, including
the questions asked/issues assessed, the answers provided/responses reported, and the
numeric score assigned to the question or issue. In support of this request, counsel relied
on K.S.A. 2016 Supp. 21-6704(a)(1), which requires the court to make available the
presentence report and any other diagnostic reports to counsel for the defendant. The
State opposed Walls' request, arguing the LSI-R assessment is not a diagnostic report as
that term is used under K.S.A. 2016 Supp. 21-6704(a)(1), and even if it was, counsel for
Walls was entitled only to his LSI-R assessment cover sheet reflecting a numeric score
assigned to general topics.
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After hearing arguments from counsel, the district court found diagnosis is a
medical term so only a medical provider can administer a diagnostic assessment and
create a diagnostic report; a court services officer does not have the credentials to do so.
Because it was not administered or created by a medical provider, the court held the
complete LSI-R assessment report—the questions asked/issues assessed, the answers
provided/responses reported, and the numeric score assigned to the question or issue—
was not a diagnostic report and, therefore, it was not required to make it available to
Walls' counsel under K.S.A. 2016 Supp. 21-6704.

The court sentenced Walls to a sentence of presumptive probation with an
underlying 7-month prison sentence to be followed by 12 months' postrelease
supervision. Because the results of the LSI-R assessment indicated that Walls was a high-
risk, high-needs probation candidate, however, the court ordered Walls' probation be
supervised by community corrections instead of court services. See K.S.A. 2016 Supp.
75-5291(a)(2)(A).

JURISDICTION

The right to appeal is entirely statutory, and the limits of appellate jurisdiction are
defined by the legislature. State v. Berreth, 294 Kan. 98, 110, 273 P.3d 752 (2012).
K.S.A. 2016 Supp. 21-6820(c) provides that an appellate court shall not review a
sentence for a felony conviction that is (1) within the presumptive guidelines sentence for
the crime, or (2) the result of a plea agreement between the State and the defendant which
the trial court approved on the record. See also State v. Sprung, 294 Kan. 300, 317, 277
P.3d 1100 (2012) (no jurisdiction to review presumptive sentences). Given his criminal-
history score and the severity level of the crime of conviction, Walls' presumptive
sentence was probation. In addition, Walls' sentence was the result of a plea agreement
between the State and the defendant which the trial court approved on the record. Thus,
the first question presented for us to resolve is whether we have jurisdiction over the
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issues raised by Walls in this appeal. See State v. Richard, 300 Kan. 715, 728, 333 P.3d
179 (2014) (appellate court has duty to question jurisdiction on its own initiative).
Determining whether an appellate court has jurisdiction raises a question of law over
which the scope of appellate review is unlimited. State v. Brown, 299 Kan. 1021, 1027,
327 P.3d 1002 (2014).

But Walls is not challenging the district court's decision to impose the presumptive
sentence of probation. Instead, Walls is challenging the procedure used by the court in
deciding what conditions of probation to impose upon him. Specifically, Walls argues he
has a statutory and constitutional right to review and verify the questions, answers, and
scoring decisions contained in the LSI-R assessment report that deemed him a high-risk,
high-needs probation candidate that, in turn, permitted the court to impose probation
supervised by community corrections under K.S.A. 2016 Supp. 75-5291(a)(2)(A).

Our Supreme Court has held that courts have broad power and authority to impose
conditions of probation so long as those conditions do not violate statutory law or
constitute an abuse of discretion by the court. See State v. Walbridge, 248 Kan. 65, 68,
805 P.2d 15 (1991). Our Supreme Court also has held that a convicted defendant has a
constitutional right to due process at sentencing, which requires "the sentencing court to
assure itself that the information upon which it relies to fix sentence is reliable and
accurate, and [further requires] the sentencing court to ensure that the defendant have an
effective opportunity to rebut the allegations likely to affect the sentence is fully
applicable under these circumstances." State v. Easterling, 289 Kan. 470, 481, 213 P.3d
418 (2009); see also State v. Garza, 290 Kan. 1021, 1034-35, 236 P.3d 501 (2010). Thus,
when the district court imposes a condition of probation that violates statutory law or the
district court makes a decision about sentencing based on information the defendant has
not reviewed for accuracy, the appeal is not construed as a challenge to a presumptive
sentence for purposes of precluding appellate review under K.S.A. 2016 Supp. 21-
6820(c). Because Walls' appeal is grounded in his constitutional and statutory right to
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review and verify the questions, answers, and scoring decisions contained in the LSI-R
assessment report, the resulting score of which permitted the court to impose probation
supervised by community corrections under K.S.A. 2016 Supp. 75-5291(a)(2)(A), we
have jurisdiction over the issues he raises.

DISCUSSION

Statutory Interpretation

Walls argues the district court erred as a matter of law by refusing his attorney's
request to review a copy of the entire LSI-R administered to Walls, including the
questions asked/issues assessed, the answers provided/responses reported, and the
numeric score assigned to the question or issue. Specifically, Walls argues the district
court was required to make the entire LSI-R assessment available to defense counsel
under K.S.A. 2016 Supp. 21-6704(a)(1). This subsection of the statute provides:

"The judge shall make available to the attorney for the state or counsel for the defendant, the
presentence report, any report that may be received from the Topeka correctional facility or the
state security hospital and other diagnostic reports and shall allow the attorney or counsel a
reasonable time to review the report before sentencing the defendant."

But the district court concluded that the LSI-R assessment was not subject to
availability under K.S.A. 2016 Supp. 21-6704(a)(1) because the term "diagnostic" as
used in the statute referred to a medical report and the preparer of the LSI-R was a court
services officer, not a medical professional. Our question, then, is one of statutory
interpretation. Statutory interpretation involves questions of law over which appellate
courts have unlimited review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098
(2015). An appellate court must first attempt to ascertain legislative intent through the
statutory language enacted, giving common words their ordinary meanings. State v.
Barlow, 303 Kan. 804, 813, 368 P.3d 331 (2016). When a statute is plain and
unambiguous, an appellate court should not speculate about the legislative intent behind
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that clear language, and it should refrain from reading something into the statute that is
not readily found in its words. 303 Kan. at 813. Where there is no ambiguity, the court
need not resort to statutory construction. Only if the statute's language or text is unclear
or ambiguous does the court use canons of construction or legislative history to construe
the legislature's intent. 303 Kan. at 813.

Clear and Unambiguous

The clear language of the statute required the court to make the LSI-R assessment
available to counsel under the facts presented in this case. More specifically, the language
in the statute plainly requires the judge to make the presentence investigation report
available to counsel for both parties, and—applying Kansas Supreme Court Rule 110B
(2017 Kan. S. Ct. R. 182) to the facts of this case—the LSI-R assessment is part and
parcel of the presentence investigation report here. Rule 110B was adopted by order of
our Supreme Court on June 26, 2014, and implemented the LSI-R as "the standardized
risk and needs assessment tool specified by the Kansas sentencing commission in
accordance with K.S.A. 75-5291(a)(2) to determine placement under supervision in
Kansas." Rule 110B(a) (2017 Kan. S. Ct. R. 182). With limited exception, judicial branch
court services officers must complete the LSI-R assessment of an offender subject to
probation either "as a component of the presentence investigation" or "no later than 45
days after the offender is placed on probation." Rule 110B(c) (2017 Kan. S. Ct. R. 182).

The record in this case reflects that the LSI-R assessment of Walls was conducted
before he was sentenced; thus, it had to have been completed "as a component of the
presentence investigation." As such, the plain language of K.S.A. 2016 Supp. 21-
6704(a)(1) required the court to make available to counsel the presentence investigation
report, of which the entire LSI-R administered to Walls was a component. In the absence
of any language to the contrary, the LSI-R assessment subject to review by counsel
necessarily encompasses the completed assessment in its entirety, including the questions
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asked/issues assessed, the answers provided/responses reported, and the numeric score
assigned to the question or issue. We note that no proprietary material was requested by
Walls or his counsel and therefore proprietary materials will specifically be excluded
from the mandate issued in conjunction with our remand for resentencing. But the court's
failure to make the LSI-R assessment administered to Walls—including any written
questions, answers, and numeric scores—for counsel to review was legal error and,
therefore, constitutes an abuse of discretion. See Walbridge, 248 Kan. at 68 (courts have
broad power and authority to impose conditions of probation so long as those conditions
do not violate statutory law or constitute an abuse of discretion by the court.)

Ambiguity: Invoking Rules of Statutory Construction

Even if the plain and unambiguous language of the statute did not require it, any
ambiguity regarding whether the legislature intended the LSI-R assessment report to
qualify as a "diagnostic report" would be resolved in favor of making the report available
to counsel. When the language in a statute is subject to various interpretations, a court
may invoke rules of statutory construction to arrive at legislative intent. Barlow, 303 Kan.
at 813. The rule of ejusdem generis (of the same kind) is a well-known rule of statutory
construction to determine the meaning of ambiguous language in a statute or other
written instrument. "Under this maxim, where enumeration of specific things is followed
by a more general word or phrase, such general word or phrase is held to refer to things
of the same kind, or things that fall within the classification of the specific terms." State
v. Moler, 269 Kan. 362, 363, 2 P.3d 773 (2000).

The relevant portion of K.S.A. 2016 Supp. 21-6704(a)(1) requires the judge to
make available "the presentence report, any report that may be received from the Topeka
correctional facility or the state security hospital and other diagnostic reports." The first
three reports enumerated in the statute are specific: the presentence report, the Topeka
correctional facility report, and the state security hospital report. But the last report
enumerated in the statute is stated generally: "other diagnostic reports." Applying the rule
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of ejusdem generis, "other diagnostic reports" as used in the statute refers to reports that
fall into the same classification as the specific reports that precede that term; e.g., the
presentence report, reports from the Topeka correctional facility, and the state security
hospital. This classification is consistent with our finding under the facts of this case that
the LSI-R assessment was a component of the presentence investigation report under
Rule 110B(a). This classification is not consistent, however, with the district court's
finding that the term "diagnostic reports" as used in the statute refers solely to medical
diagnostic reports. So even if it were necessary to resort to statutory construction, the
court's failure to make the LSI-R assessment available for counsel to review was legal
error and, therefore, constitutes an abuse of discretion.

Procedural Due Process

In addition to legal error and an abuse of discretion based on misapplication of the
statute, we also find the court's failure to give counsel a copy of the entire LSI-R deprived
Walls of his right to procedural due process in the sentencing phase of his criminal
proceedings. Under K.S.A. 2016 Supp. 75-5291(a)(2)(A), the district court was not
permitted to order Walls' probation be supervised by a community correctional services
program unless Walls scored as a moderate risk, high risk, or very high risk for failure on
probation by the LSI-R assessment tool. K.S.A. 2016 Supp. 75-5291(a)(2)(A). Based on
the plain language of the statute, the district court was required to rely on the LSI-R to
determine the conditions of probation. But Walls was denied access to the LSI-R, which
necessarily denied him the opportunity to challenge the accuracy of the information upon
which the court was required to rely in determining the conditions of his probation. We
find the district court's decision to deny Walls access to the LSI-R violated his right to
procedural due process. See Easterling, 289 Kan. at 481 (for purposes of due process, the
sentencing court is required "to assure itself that the information upon which it relies to
fix sentence is reliable and accurate, and . . . to ensure that the defendant ha[s] an
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effective opportunity to rebut the allegations likely to affect the sentence"); see also
Garza, 290 Kan. at 1034-35 (same).

Sentence vacated and remanded with directions to allow Walls access to the
complete diagnostic LSI-R assessment and report that was administered to him prior to
resentencing.

Sentence vacated and remanded with directions.