Opinion
No. 106,249.
2012-08-17
STATE of Kansas, Appellee, v. James Lewis LYLES, Appellant.
Appeal from Lyon District Court; Merlin G. Wheeler, Judge. Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Vernon E. Buck, first assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Lyon District Court; Merlin G. Wheeler, Judge.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Vernon E. Buck, first assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BUSER and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
James Lewis Lyles was the sole passenger in a vehicle that was stopped by police. The officer arrested the driver for driving without proof of insurance and told Lyles he had to find another way home. When Lyles stepped out of the vehicle, a glass pipe fell onto the seat in which he had been sitting. The officer arrested Lyles and searched the vehicle, finding methamphetamine in a purse on the middle seat and drug paraphernalia scattered throughout the vehicle. A jury convicted Lyles of possession of methamphetamine and drug paraphernalia. Lyles appeals his convictions and controlling sentence.
Concerning Lyle's argument on appeal, we find the district court did not err by failing to inquire as to whether the verdict was the jury's verdict because Lyles declined jury polling. There was sufficient evidence to convict Lyles because his person and property were near the area where the methamphetamine and drug paraphernalia were found, his behavior was suspicious, and some of the paraphernalia was found in plain view. And the court did not err by placing Lyles on 18 months' probation because the applicable sentencing provision had been amended to so provide.
On October 7, 2010, around 1:30 a.m., Deputy Cory Nicolet of the Lyon County Sheriff's Department observed a Jeep travelling very slowly near some railroad tracks. After the Jeep pulled over to the right for no apparent reason and then drove into the middle and onto the left side of the road, Deputy Nicolet initiated a traffic stop.
The driver supplied two driver's licenses, identifying the driver-owner as Alyssa Long and the passenger as Lyles. Lyles was wearing a small pair of shorts but no shirt or shoes. Both occupants were “twitchy and overly energetic” and had sores on their bodies, including their faces, consistent with methamphetamine usage. The Jeep had two captain seats in the front separated by a center console, a middle seat, and a rear bench seat. Both the front and rear compartments were filled with a miscellany of items up to the windowsills. Shortly after the initial stop, back-up Deputy James Baker arrived at the scene.
Long was able to provide her vehicle registration but, after several minutes of looking through the cluttered Jeep, she failed to provide proof of insurance. Deputy Nicolet asked Long to accompany him to his patrol car. He read Long her Miranda rights and asked her where they were going and where they had been. To corroborate her story, he went to the Jeep to question Lyles. He then arrested Long for failure to provide proof of insurance.
Armed with his flashlight, Deputy Nicolet returned to Lyles, who had been sitting in the Jeep for about 20 minutes. Deputy Nicolet told him that he needed to secure alternative transportation because the Jeep was being towed. Lyles “stalled and wasn't happy about the situation.” When Lyles leaned forward to get out of his reclined seat, Deputy Nicolet saw a white glass pipe “roll [ ] from his lower back just above the crest of the seat into the seat area.” As Lyles exited the Jeep, he placed a jacket on top of the pipe. Based on the pipe, Deputy Nicolet handcuffed Lyles and placed him in Deputy Baker's patrol car. When Deputy Nicolet inquired about the pipe, Lyles denied any knowledge of it.
The deputies proceeded to search the front compartment of the Jeep, the areas over which Lyles would have had “immediate control.” Deputy Nicolet testified, “The vehicle was small enough that he would have been able to control things from his seat all the way to the driver's door.” Between the driver's seat and the center console they found a razor container with a plastic baggie inside. The baggie contained a broken pipe with residue, similar to the unbroken one, which are commonly used to ingest illegal narcotics. They found two lighters in the front compartment, one hanging from the key in the ignition, which can be used in conjunction with a spoon or pipe to heat narcotics into a gas for ingestion.
After securing the Jeep and having it towed to a guarded facility, Deputy Nicolet transported Lyles to the county jail and obtained a search warrant for the Jeep. He did not have Lyles drug tested. Narcotics Detective Travis Mishler and Deputy Danny Broyles helped Deputy Nicolet execute the warrant, which uncovered the following evidence: two white scales found in the front passenger floorboard that are commonly used to weigh narcotics so as to verify the purchase price; a white cloth with visible residue found in the glove compartment which could be used to wipe down pipes; Bugler rolling papers found above the center console—between it and the ceiling—that are commonly used to ingest marijuana; a burned silver spoon—with residue—commonly used to change the state of narcotics for ingestion found on the rear passenger floorboard underneath the clutter; a purse found on the middle seat, which contained a makeup bag, which contained a compact, which contained a plastic baggie of white crystalline substance; and a broken piece of pipe with residue found in the rear compartment.
None of the evidence found in the Jeep was dusted for fingerprints, and neither the scales nor the spoon were tested for traces of drugs. Deputy Nicolet never saw Long in physical possession of any of the evidence. KBI forensic scientist Brad Crow ran several tests and concluded that both the plastic baggie and the unbroken pipe contained methamphetamine. Lyles did not testify or present any evidence.
The district court instructed the jurors that they should find Lyles guilty if the State proved beyond a reasonable doubt that Lyles (1) intentionally possessed methamphetamine (PIK Crim.3d 67.16), and (2) intentionally possessed the broken glass pipe, rolling papers, silver spoon, glass pipes and pieces of broken pipes, razor container with baggie, baggie with white powdery substance, two lighters, and cloth, with the intent to use them to inject, ingest, inhale or otherwise introduce methamphetamine into the human body (PIK Crim.3d. 67.36). Most importantly, the district court defined possession as follows:
“Possession of a controlled substance requires that the defendant have control over the substance with knowledge of and the intent to have such control. To possess a controlled substance, the defendant must have knowledge of the presence of the controlled substance with the intent to exercise control over it. Control means to exercise a restraining or directing influence over the controlled substance.
“Possession may be immediate and exclusive or jointly held with another. Joint possession occurs when two or more persons, who have the power or control and intent to manage property, exercise the same jointly.
“When a defendant is in nonexclusive possession of an automobile in which a controlled substance is found, it cannot be inferred that the defendant knowingly possessed the controlled substance unless there are other circumstances linking the defendant to the controlled substance. You may consider the following factors in determining whether the defendant knowingly possessed the controlled substance, if you find they are supported by the evidence:
1. whether the defendant was near the area where the controlled substance was found;
2. whether the controlled substance was found in plain view;
3. whether the defendant's behavior was suspicious; and
4. whether the defendant's personal belongings were near the controlled substance.”
This instruction was modeled on PIK Crim.3d 67.13–D, which includes seven factors. The district court removed three—defendant's previous participation in the sale of a controlled substance, defendant's use of controlled substances, and incriminating statements of the defendant—presumably because there was no evidence presented at trial to support them.
After deliberating for just under 3 hours, the jury found Lyles guilty of possession of methamphetamine and possession of drug paraphernalia. The judge read the verdicts in open court:
“THE COURT: Members of the jury, it is my understanding that you have reached a verdict; is that correct?
“PRESIDING JUROR: Yes, we have, Your Honor.
“THE COURT: Would you return that to Mrs. Scott, please.
“PRESIDING JUROR: (Complied.)
“[THE COURT:] Will the defendant please rise? I'll publish the verdicts as follows:
“We, the jury, find the defendant guilty of possession of methamphetamine as charged in Count 1.
“The verdict as to Count 3 reads: We, the jury, find the defendant guilty of possession of drug paraphernalia as charged in Count 3.
....
“Counsel, is there any request that the jury be polled?
“[STATE]: Not by the [S]tate, Your Honor.
“[DEFENSE COUNSEL]: No.
“THE COURT: I'll leave the verdict forms here, Counsel, if you would like to take a look at the verdict form.
“Members of the jury, I want to thank you very much for your service in this case.”
On April 14, 2011, the district court imposed an 11–month sentence—11 months for possession of methamphetamine and 6 months for possession of drug paraphernalia, to run concurrently—and placed Lyles on 18 months' probation with community corrections. The court also ordered Lyles to attend mandatory drug treatment for up to 18 months under Senate Bill 123. On the journal entry of sentencing, the box entitled “Drug treatment for up to 18 months. K.SA.2010 Supp. 21–4729” is marked, but the one entitled “Extended Period under K.S.A.2010 Supp. 21–4611(c)(5) for: ____ months” is unmarked.
Lyles timely appeals his convictions and controlling sentence.
Lyles first argues the district court erred by accepting the jury's verdict without inquiring into the accuracy of the verdict. Citing State v. Johnson, 40 Kan.App.2d 1059, 198 P.3d 769 (2008), Lyles claims the court's failure to follow K.S.A. 22–3421 was reversible error. Citing State v. Dunlap, 46 Kan.App.2d 924, 266 P.3d 1242 (2011), petition for review filed December 30, 2011, the State counters that either Lyles waived his rights under K.S.A. 22–3421 by declining jury polling or the court's failure to follow the statute was harmless error.
Issues of statutory interpretation and jury unanimity are questions of law over which appellate courts have unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010) (statutory interpretation); State v. Kesselring, 279 Kan. 671, 678, 112 P.3d 175 (2005) (jury unanimity).
The Kansas Code of Criminal Procedure guides district courts through accepting a jury verdict. K.S.A. 22–3421 provides:
“The verdict shall be written, signed by the presiding juror and read by the clerk to the jury, and the inquiry made whether it is the jury's verdict. If any juror disagrees, the jury must be sent out again; but if no disagreement is expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case. If the verdict is defective in form only, it may be corrected by the court, with the assent of the jury, before it is discharged.”
This court is split over the interpretation of this statute. This issue was first addressed in Johnson, where the district court accepted the jury's verdict without inquiring into the verdict's accuracy or asking whether the parties wanted the jury polled. Johnson did not object to either of these failures, nor did he raise the issue in his motion for a new trial. His motion did, however, include affidavits from jurors who revealed they felt pressured to vote guilty at the end of deliberations. The Johnson panel held:
“Under K.S.A. 22–3421, the parties have the burden to request individual polling of the jury. Because Johnson failed to timely request polling of the jury, he waived his right to have the jury individually polled. Nevertheless, K.S.A. 22–3421 imposes a statutory mandate upon the trial court to ask the jury in open court whether the verdict is the jury's verdict. Because the trial court failed to follow the statutory mandate of K.S.A. 22–3421, which would give the jurors an opportunity to express dissent from or disagreement with the verdict, we cannot be satisfied that the verdict was truly unanimous in this case. Under the facts of this case, where Johnson has presented jurors' affidavits showing problems with the unanimity of the verdict, we determine that the trial court's failure to follow the statutory mandate of K.S.A. 22–3421 to inquire as to whether the verdict was the jury's verdict amounted to reversible error.” 40 Kan.App.2d at 1060–61.
The issue arose again in State v. Gray, 45 Kan.App.2d 522, 525, 249 P.3d 465,rev. denied 292 Kan. 967 (2011). In that case, the district court asked the jury foreperson whether a verdict had been reached but did not inquire as to whether the verdict was the jury's verdict. The Gray panel adopted the reasoning set out in Johnson, despite a lack of evidence revealing problems with the unanimity of the verdict. 45 Kan.App.2d at 524–25.
Lyles relies on Johnson and Gray to support his argument that he is entitled to a new trial based on the district court's noncompliance with K.S.A. 22–3421. One Court of Appeals panel has the right to disagree with a previous panel of the same court. State v. Urban, 291 Kan. 214, 223, 239 P.3d 837 (2010). In Dunlap, the district court read the verdict in open court but did not inquire as to whether the verdict was the jury's verdict. The Dunlap panel “interpret[ed] K.S.A. 22–3421 as requiring the trial court to follow two separate steps in accepting a jury verdict. First, the trial judge shall inquire whether the verdict read in open court is the jury's verdict. Second, the trial judge must poll the jury if either party requests that the jury be polled.” 46 Kan.App.2d at 928. The panel held:
“Under the facts of this case, we reject Dunlap's claim that he is entitled to a new trial because of this error on two alternative grounds. First, the trial judge explicitly asked the parties if they wanted to have the jury polled, which would have accomplished the same purposes as having the judge inquire into the accuracy of the verdict, and Dunlap's counsel declined the request for polling. In such cases, appellate courts should not consider a challenge to the procedure for accepting the verdict for the first time on appeal based on concepts of waiver or invited error. Second, any error by the trial court in failing to comply with K.S.A. 22–3421 is subject to harmless error analysis. Because we are persuaded that the error did not affect Dunlap's substantial rights, we conclude the trial court's failure to comply with K.S.A. 22–3421 constituted harmless error.” 46 Kan.App.2d at 925.
We note that in the instant case no juror has in any way challenged the verdict.
Panels of this court have recently decided to follow Dunlap rather than Johnson. See State v. Womelsdorf, 47 Kan.App.2d 307, Syl. ¶ 8, 274 P.3d 662 (2012) (defendant could not challenge procedure for accepting verdict for first time on appeal because defense counsel declined jury polling), petition for review filed May 10, 2012; State v. Stangl, No. 105,400, 2012 WL 924831, at *2–3 (Kan.App.2012) (unpublished opinion), petition for review filed April 11, 2012; State v. Delmer, No. 104,840, 2011 WL 6943076, at *2–3 (Kan.App.2011) (unpublished opinion) petition for review filed January 23, 2012. We do the same. Here, the district court read the verdict in open court but did not inquire as to whether the verdict was the jury's verdict. The court did, however, explicitly ask the parties if they wanted the jury polled, and Lyles' attorney declined the invitation. Therefore, we shall not consider Lyles' verdict acceptance challenge under concepts of waiver or invited error.
We also hold that even if we were to consider the issue, the district court's verdict acceptance error was harmless. An error is harmless if it did not affect the defendant's substantial rights, meaning it did not affect the trial's outcome. K.S.A.2011 Supp. 60–261; State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012). Because the right to a unanimous jury verdict is statutory—not constitutional—the court's error was harmless if there is no reasonable probability that it affected the outcome of Lyles' trial. In making this determination, we shall consider the sufficiency of the evidence supporting the verdict and, more importantly, whether anything in the record casts doubt on the verdict's unanimity. Dunlap, 46 Kan.App.2d at 937. Here, there is no reasonable probability that the trial's outcome was affected by the court's failure to follow K.S.A. 21–3421. The trial evidence supported the jury's verdict, no juror has suggested that the verdict was read incorrectly, and the parties evidently thought that the verdict was accurate, given their decision to bypass jury polling.
Therefore, the district court did not err by failing to inquire as to whether the verdict was the jury's verdict. See State v. Gindlesberger, No. 105,604, 2012 WL 2620552, at * 4–5 (Kan.App.2012) (unpublished opinion); State v. Martin, No. 105,564, 2012 WL 2148177, at * 1–3 (Kan.App.2012) (unpublished opinion), petition for review filed July 9, 2012.
Next, Lyles argues the State presented insufficient evidence that he possessed methamphetamine and drug paraphernalia. Specifically, he claims that the drug paraphernalia was not in plain view, his behavior was not suspicious, he did not have control over the purse in which the methamphetamine was found, and his shoes and jacket were not located near the methamphetamine. Citing State v. Abbott, 277 Kan. 161, 83 P.3d 794 (2004), the State counters that the pipe was touching Lyles' body, the other drug evidence was found in close proximity to where he was sitting, he was reluctant to exit the Jeep, and he tried to conceal the pipe.
When sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, examined in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). Because it is the jury's function to weigh the evidence and determine the credibility of witnesses, we will not reweigh the evidence. State v. Cosby, 293 Kan. 121, 134, 262 P.3d 285 (2011).
Knowledge of and intent to control, the essential elements of possession of a controlled substance, may be proved by circumstantial evidence. State v. Anthony, 242 Kan. 493, 502–03, 749 P.2d 37 (1988); see PIK Crim.3d 53.00 (defining possession as “having control over a place or thing with knowledge of and the intent to have such control”). Possession of a controlled substance may be immediate and exclusive, jointly held with another, or constructive where the drug is kept by the accused in a place to which he or she has some measure of access and right of control. State v. Woods, 214 Kan. 739, 744, 522 P.2d 967 (1974).
Constructive possession of contraband in a vehicle was addressed in State v. Faulkner, 220 Kan. 153, 160, 551P.2d 1247 (1976):
“[W]hen illicit drugs are found in an automobile containing more than one person, the defendant's mere presence in the vehicle, without more, would not sustain his conviction for possession. Other circumstances which have been held sufficiently incriminating to link a defendant with illicit drugs in a vehicle are his previous participation in the sale of drugs, his use of narcotics, his proximity to the area where drugs are found and the fact the drugs were found in plain view.”
This issue was addressed in State v. Bullocks, 2 Kan.App.2d 48, 50, 574 P.2d 243,rev. denied 225 Kan. 846 (1978), by adding three factors to the Faulkner analysis: (1) incriminating statements made by the defendant; (2) suspicious behavior on the part of the defendant; and (3) proximity of the defendant's possessions to the area where drugs are found.
Our Supreme Court revisited the issue 26 years later in Abbott, 277 Kan. 161. In that case, police stopped a van and seized a glass pipe, a set of scales, a pouch with zip-lock baggies, a razor blade, and a business card folded into a funnel shape, all from the rear pockets of the van's middle seats. Abbott had been sitting on the rear bench seat and was convicted of possession of methamphetamine with intent to sell and possession of drug paraphernalia. After setting out the seven factors, the Court affirmed Abbott's drug paraphernalia conviction based on his proximity to the area of the vehicle where the paraphernalia was found, his previous sale of drugs to an informant, and his possession of drugs in his underwear when the paraphernalia was found. 277 Kan. at 168–70.
In support of its holding, the Abbott court cited Maryland v. Pringle, 540 U.S. 366, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003), where police stopped a car and seized $763 from the glove compartment and cocaine from behind the back-seat armrest. They arrested the car's three occupants, all of whom denied ownership of the money and drugs. Pringle had been riding in the front passenger seat and was convicted of possession of cocaine and possession with intent to distribute cocaine. The court believed it to be “an entirely reasonable inference from these facts that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine.” 540 U.S. at 372.
This court has continued to apply the factors from Faulkner and its progeny. See State v. Marion, 29 Kan.App.2d 287, 290–91, 27 P.3d 924,rev. denied 272 Kan. 1422 (2001) (evidence sufficient to link defendant to cocaine and drug paraphernalia found in shared residence where spoon with cocaine residue found in plain view and drug paraphernalia found in living room where defendant slept); State v. Rios, 19 Kan.App.2d 350, 358–60, 869 P.2d 755 (1994) (evidence insufficient to link defendant to marijuana found in car trunk where State only proved defendant's mere presence in the car).
In this case, despite the lack of DNA or fingerprint evidence, we hold that the testimonies of Deputy Nicolet and Deputy Broyles were sufficient to link Lyles to the methamphetamine and drug paraphernalia found in the Jeep. The State clearly presented sufficient evidence to support Lyles' possession of certain drug paraphernalia. First, Lyles, who had been sitting in the Jeep's front passenger seat, was extremely close to the areas where police found the pipe (on passenger seat, seen touching Lyles' back), rolling papers (above center console), razor container with broken pipe inside (between driver's seat and center console), lighters (in front compartment), scales (on front passenger floorboard), and cloth (in glove compartment). Second, Lyles' behavior upon being pulled over qualified as suspicious. Deputy Nicolet testified that Lyles was “twitchy and overly energetic,” he hesitated after being asked to exit the vehicle, and he tried to hide the pipe with his jacket. Third, some paraphernalia was found in plain view (pipe, lighter, and scales). And fourth, Lyles' property was in the immediate area where police found the paraphernalia (jacket on passenger seat).
The State's evidence supporting Lyles' possession of the methamphetamine and other drug paraphernalia is weak but still sufficient. Lyles was close to the areas where police found the broken pipe, the purse containing the methamphetamine, and the spoon. His behavior was suspicious, and his property was located near where police found the methamphetamine and paraphernalia. Furthermore, the Abbott court found it noteworthy that the officer had seen movement in the van before he contacted the occupants. Here, Lyles was alone in the Jeep for about 20 minutes. Because Lyles had access to both the front and rear compartments of the Jeep during that time, a rational factfinder could have inferred that he had hidden the methamphetamine and paraphernalia. And finally, although the jury was not instructed to consider this factor in its constructive possession analysis, the evidence supports a finding that Lyles was a drug user—Deputy Nicolet testified to having seen sores consistent with methamphetamine use all over Lyle's shirtless body.
Because this evidence is sufficiently incriminating to link Lyles to the methamphetamine and drug paraphernalia, there was sufficient evidence to convict him of possession of methamphetamine and drug paraphernalia.
Finally, Lyles appeals the district court's imposition of an 18–month probation term following his convictions for methamphetamine and drug paraphernalia possession. Citing State v.. Holt, 39 Kan.App.2d 741, 186 P.3d 803 (2007), Lyles claims his presumptive probation term under the Kansas Sentencing Guidelines Act (KSGA) was limited to 12 months and the court failed to make the required findings to extend the probation term to 18 months. The State correctly counters that the 2009 amendment to the applicable sentencing statute authorized the court to impose an 18–month probation term.
Interpretation of a sentencing statute is a question of law over which this court exercises unlimited review. State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009). An appellate court's most fundamental guideline is that the intent of the legislature governs if that intent can be ascertained. State v. Henning, 289 Kan. 136, 139, 209 P.3d 711 (2009). When examining statutes to determine legislative intent, this court must consider various provisions of an act in pari materia to reconcile and bring them into harmony if possible. State v. Raschke, 289 Kan. 911, 914, 219 P.3d 481 (2009).
Because Lyles possessed methamphetamine and drug paraphernalia in October 2010, K.S.A.2010 Supp. 21–4611(c)(4) controls this appeal. See State v. Williams, 291 Kan. 554, 559–60, 244 P.3d 667 (2010) (sentencing statutes in effect at time crime was committed control). Lyles' methamphetamine possession conviction carried a 10– to 12–month sentence of presumptive probation and mandatory drug treatment under the KSGA. See K.S.A.2010 Supp. 21–36a06(a), (c)(1) (possession of methamphetamine is severity level 4 drug felony); K.S .A.2010 Supp. 21–4705(a) (grid box for criminal history of I and severity level 4 drug offense); K.S.A.2010 Supp. 21–4603d(n) (for felony violation of K.S.A.2010 Supp. 21–36a06, court must place defendant meeting requirements of K.S.A.2010 Supp. 21–4729 in certified drug abuse treatment program); K.S.A.2010 Supp. 21–4729(a)(1),(c) (if offense is in drug grid block 4–I and no convictions for certain felonies, court must commit defendant to drug treatment for term not to exceed 18 months). Lyles drug paraphernalia possession conviction carried an imprisonment term not to exceed 1 year. See K.S.A.2010 Supp. 21–36a09(b)(2), (e)(3) (possession of drug paraphernalia is class A misdemeanor); K.S.A.2010 Supp. 21–4502(1)(a) (sentence for class A misdemeanor is definite county jail term of up to 1 year).
In addition to establishing the nature (imprisonment or probation) and length of presumptive sentences, the KSGA also governs the length of probation periods. K.S.A 2010 Supp. 21–4611 provides:
“(c) For all crimes committed on or after July 1, 1993, the duration of probation in felony cases sentenced for the following severity levels on the sentencing guidelines grid ... for drug crimes is as follows:
...
“(3) Except as otherwise provided, in felony cases sentenced at ... severity level 4 on the sentencing guidelines grid for drug crimes, if a nonprison sanction is imposed, the court shall order the defendant to serve a period of probation of up to 12 months in length.
“(4) In felony cases sentenced at ... severity level 3 on the sentencing guidelines grid for drug crimes and felony cases sentenced pursuant to K.S.A. 21–4729, and amendments thereto, if a nonprison sanction is imposed, the court shall order the defendant to serve a period of probation, or assignment to a community correctional services program, as provided under K.S.A. 75–5291 et seq., and amendments thereto, of up to 18 months in length.
“(5) If the court finds and sets forth with particularity the reasons for finding that the safety of the members of the public will be jeopardized or that the welfare of the inmate will not be served by the length of the probation terms provided in subsections (c)(3) and (c)(4), the court may impose a longer period of probation. Such an increase shall not be considered a departure and shall not be subject to appeal.” (Emphasis added.)
In Holt, this court interpreted K.S.A. 21–4611(c) as setting forth the maximum term of probation that a district court can impose in felony cases, and K.S.A. 21–4729(c) as setting forth the maximum term of drug treatment that a court can impose for certain defendants. 39 Kan.App.2d at 744. Holt was convicted of attempted possession of marijuana in violation of K.S.A. 65–4162, a severity level 4 drug felony, and his criminal history score was H. The court imposed a 7–month sentence, placed Holt on 18 months' probation, and ordered him to attend mandatory drug treatment for up to 18 months under Senate Bill 123. This court ultimately held:
“Because K.S.A. [2006 Supp.] 21–4611, rather than K.S.A. [2006 Supp.] 21–4729, sets forth the maximum probation term a district court can impose, Holt's presumptive term of probation was limited to 12 months. See K.S.A. [2006 Supp.] 21–4611(c)(3). The district court could have imposed a longer probation term of 18 months if it had made the necessary findings under K.S.A. [2006 Supp.] 21–4611(c)(5). However, it failed to do so. Without making these requisite findings, the district court's extension of Holt's probation was an abuse of discretion, resulting in an illegal sentence. [Citations omitted.]” 39 Kan.App.2d at 745.
This case is distinguishable because K.S.A. 21–4611 was amended after Holt was decided. The current statute provides:
“(4) In felony cases sentenced at severity level 8 on the sentencing guidelines grid for nondrug crimes[,] severity level 3 on the sentencing guidelines grid for drug crimes [and felony cases sentenced pursuant to K.S.A. 21–4729, and amendments thereto], if a nonprison sanction is imposed, the court shall order the defendant to serve a period of probation, or assignment to a community correctional services program, as provided under K.S.A. 75–5291 et seq., and amendments thereto, of up to 18 months in length.” K.S.A.2010 Supp. 21–4611(c)(4) (2009 additions in brackets).
Thus, if Holt had attempted to possess marijuana at the time Lyles possessed methamphetamine, the two would have suffered the same fate—18 months' probation with mandatory drug treatment. By its plain and unambiguous language, K.S.A.2010 Supp. 21–4611(c)(4) applies to three types of cases: (1) those involving a severity level 8 nondrug felony; (2) those involving a severity level 3 drug felony; and (3) those involving mandatory drug treatment under K.S.A.2010 Supp. 21–4729. Moreover, Lyles' argument that the statute should be interpreted as applying to cases involving either a severity level 8 nondrug felony or a severity level 3 drug felony and mandatory drug treatment ignores this court's duty to read KSGA provisions in pari materia. See Raschke, 289 Kan. at 914. Lyles' interpretation is fundamentally flawed because defendants convicted of a severity level 3 drug felony are not even eligible for drug treatment under K.S.A.2010 Supp. 21–4729.
Therefore, the district court did not err by sentencing Lyles to 18 months' probation.
Affirmed.