Kansas Supreme Court Decisions – November 7th 2008

This post originally appeared at The Kansas Progress, before this blog went live. Consequently the date in the title does not tally with the date on the post.

The Kansas Supreme Court today handed down two unanimous decisions relating to Criminal Law.

In State v. McCarley, No.  95,818, a decision authored by Justice Nuss, the court held that when a District Court passes the wrong sentence under the sentencing guidelines, for a crime which a defendant has been properly convicted of, that sentence is illegal and the District Court must correct its error. This holds true even where the Prosecution did not notice the error in the presentencing report. In doing so, the court overturned a divided panel of the Court of Appeals and the District Court which had held that the mistake could not be corrected.

The question arose from the case of Steven McCarley, who when trying to drive away after hitting a car in a Wichita parking lot, bumped into one of its owners. During the altercation the other owner was also injured. McCarley was charged with two counts Aggravated Battery. The jury acquitted him of these charges but convicted him on one count of the lesser offence of Reckless Aggravated Battery. The charge he was convicted of was a level 5 felony, however the presentencing report incorrectly wrote this up as the level 8 felony version of the offence. When asked, both the prosecution and defense counsel agreed that the report was correct and he was consequently sentenced to 23 months in prison, instead of the 122-136 month range he should have received for the level 5 felony. Both the District Court and the Court of Appeals rejected the State’s motion to correct the sentence. In overruling them the Supreme Court held that the mistake created an illegal sentence which had to be corrected. The case was remanded to the District Court for resentencing.

The Supreme Court affirmed the rest of the Appeals Court ruling dismissing McCarley’s cross-appeal alleging error in the jury instructions.

The other decision, State v. Preston, No. 98,948, was authored by Justice Johnson. This case was transferred by the Supreme Court from the Court of Appeals docket. In a relatively straightforward case of statutory interpretation the court held that the amount of time a certain class of probationer spends in a mandatory inpatient drug treatment program does not count against their underlying prison sentence.

The case related to a Marsha Inez Preston, who after an uncontested conviction for possession of cocaine, was placed onto probation under what is known as a ‘Senate Bill 123’ certified drug abuse treatment plan. After violating her probation she was also sent to a mandatory inpatient treatment program. After again violating her renewed probation she was sent to prison to serve her original sentence. Preston claimed that the two months of inpatient treatment should count against her prison time under a variety of arguments which the court rejected, holding that the Legislature had wanted to eliminate a previous ability for inpatient treatment to count against jail time and had amended the law to do just that.



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