State v. Sandberg

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 100,037

STATE OF KANSAS,
Appellee,

v.

JASON S. SANDBERG,
Appellant.


SYLLABUS BY THE COURT


1.
The question of whether Kansas' identical offense sentencing doctrine applies is a
question of law. On appeal, questions of law are reviewed de novo.

2.
Under Kansas' identical offense sentencing doctrine, if two criminal offenses have
identical elements but different penalty classifications, a defendant convicted of either
crime may be sentenced only under the lesser penalty provision.

3.
Legislative intent plays no role in an identical offense sentencing doctrine
analysis. Rather, regardless of the legislature's intent, if the elements in overlapping
provisions are identical, the due process considerations involved in the doctrine apply and
a defendant may only be sentenced to the lesser penalty provided for in the identical,
overlapping provisions.



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4.
Kansas' identical offense sentencing doctrine does not apply to severity levels of
the same offense.

5.
The rule of lenity does not require a prosecutor to charge the least severe level in a
hierarchy of included offenses.

Appeal from Shawnee District Court; EVELYN Z. WILSON, judge. Opinion filed July 23, 2010.
Affirmed.

Shawn E. Minihan, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.

Jason E. Geier, assistant district attorney, argued the cause, and Jamie L. Karasek, assistant
district attorney, Robert D. Hecht, district attorney, and Steve Six, attorney general, were on the brief for
appellee.

The opinion of the court was delivered by

LUCKERT, J.: In enacting K.S.A. 21-3523, the Kansas Legislature defined two
severity levels for an offense of electronically enticing or soliciting a child to commit or
submit to an unlawful sex act. The only distinction between the two severity levels is the
age of the person being enticed or solicited or, more accurately, the age the offender
believes that person to be. A more severe punishment may be imposed if the offender
believes the person being enticed or solicited is younger than 14 years of age. K.S.A. 21-
3523(a)(2), (b) (severity level 1 person felony). A less severe punishment is imposed if
the offender believes the person is younger than 16 years of age. K.S.A. 21-3523(a)(1),
(b) (severity level 3 person felony). These age groups overlap, meaning that a prosecutor
has the discretion to charge an offender with either a severity level 1 or a severity level 3
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person felony if the offender believes the person being enticed or solicited is younger
than 14 years of age. Pointing to this overlap, Jason S. Sandberg, who was charged with
the more severe level 1 person felony, argues Kansas' identical offense sentencing
doctrine and the rule of lenity require that he be sentenced to the lesser severity level 3
person felony sentence.

We reject his arguments, which would require us to expand the identical offense
sentencing doctrine beyond past applications. Past cases have applied the doctrine if two
criminal offenses have identical elements but different penalty provisions; in such a case,
we have held that a defendant convicted of either crime may be sentenced only under the
lesser penalty provision. In this case, Sandberg seeks to apply the doctrine to severity
levels of the same offense. We decline to expand the doctrine in this manner and also
conclude the rule of lenity does not require a prosecutor to charge the lowest applicable
severity level of a given crime.

FACTUAL AND PROCEDURAL OVERVIEW

The indictment charging Sandberg with electronic solicitation of a child in
violation of K.S.A. 2006 Supp. 21-3523 did not specify which subsection of the statute
was charged. However, both the indictment and the written plea agreement identified the
crime as the most severe, i.e., a severity level 1 person felony pursuant to K.S.A. 2006
Supp. 21-3523(a)(2), (b). Sandberg pleaded no contest to this charge. During the plea
hearing, the factual basis offered in support of the plea established that Sandberg
electronically solicited or enticed a person whom he believed to be 13 years old to
commit or submit to an unlawful sex act. Sandberg indicated that he understood the crime
was a severity level 1 person felony carrying a sentencing range of 147 to 653 months,
depending on his criminal history score.

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After entering the plea and before being sentenced, Sandberg filed a motion for a
dispositional and durational departure. He argued there were mitigating factors
warranting a departure, and he raised the argument that Kansas' identical offense
sentencing doctrine required that he be sentenced under the lesser of the two severity
levels—i.e., a severity level 3 person felony. The district court heard arguments on the
motion and directed briefing of the identical offense issue.

In deciding the issue, the district court viewed the issue as one of statutory
construction. The district court concluded K.S.A. 2006 Supp. 21-3523 was ambiguous
and, consequently, a review of the legislative history was warranted. Based on that
review, the district court determined the legislature intended for offenders to receive a
harsher punishment when the offender believed the victim to be younger than 14 years of
age. Accordingly, the court imposed the severity level 1 punishment specified in K.S.A.
2006 Supp. 21-3523(a)(2), (b) and sentenced Sandberg to a 184-month prison sentence.

Sandberg appealed his sentence, raising only his arguments that the identical
offense sentencing doctrine and rule of lenity required sentencing him to the penalty
applicable to a level 3 person felony. Consequently, Sandberg is not attacking the validity
of his conviction, the facts supporting that conviction, or the failure to depart because of
mitigating circumstances. This court transferred the case from the Court of Appeals
pursuant to K.S.A. 20-3018(c).

IDENTICAL OFFENSE SENTENCING DOCTRINE

The identical offense sentencing doctrine is unique to Kansas and a handful of
other jurisdictions and, as applied in Kansas, the doctrine is defined in decisions of this
court. Under the Kansas doctrine, if two criminal offenses have identical elements but
different penalty classifications, a defendant convicted of either crime may be sentenced
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only under the lesser penalty provision. State v. Thompson, 287 Kan. 238, 253, 258-59,
200 P.3d 22 (2009).

This doctrine differs from the analytical approach adopted by the United States
Supreme Court in United States v. Batchelder, 442 U.S. 114, 60 L. Ed. 2d 755, 99 S. Ct.
2198 (1979), when faced with a due process and equal protection challenge brought by a
defendant who had been sentenced to the more severe penalty allowed by two
overlapping statutes. However, Sandberg does not raise the due process considerations
adopted in Batchelder; he relies exclusively on the application of the Kansas doctrine.
Consequently, if the Kansas doctrine does not apply, there is no need for a further due
process analysis.

On appeal, as before the district court, the parties' arguments assume that the
identical offense sentencing doctrine applies to the overlapping provisions at issue.
However, the State does make an argument that implicitly suggests the doctrine does not
apply when it argues that courts should further the legislative intent of imposing the more
severe penalty when the victim is believed to be younger than 14 years of age. The reason
we suggest this is an implicit argument that the doctrine does not apply is because our
past cases have indicated that legislative intent plays no role in an identical offense
sentencing doctrine analysis. Rather, regardless of the legislature's intent, "[i]f the
elements in overlapping provisions are identical, the due process considerations involved
in Kansas' identical offense sentencing doctrine apply and a defendant may only be
sentenced to the lesser punishment provided for in the identical, overlapping provisions."
Thompson, 287 Kan. at 258.

Regardless, at least directly, the parties have skipped the threshold analytical step
of determining whether the doctrine applies. Only if it does would we reach the level of
analysis on which the parties focus and determine whether the doctrine required the
district court to impose a severity level 3 person felony sentence. Even though the parties
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did not address the threshold question, our analysis would be erroneous if we blindly
applied the doctrine without determining whether the circumstances warranted our doing
so. Consequently, we address the question even though it was not directly raised by the
parties. See State v. Sedillos, 279 Kan. 777, 785, 112 P.3d 854 (2005) (appellate court
may address question not raised by parties when issues cannot be fully analyzed without
doing so).

A. Standard of Review

The question of whether Kansas' identical offense sentencing doctrine applies is a
question of law. On appeal, questions of law are reviewed de novo. State v. Appleby, 289
Kan. 1017, 1038, 221 P.3d 525 (2009).

B. Application of Kansas' Identical Offense Sentencing Doctrine

Several years after the Batchelder decision, this court applied the identical offense
sentencing doctrine in State v. Clements, 241 Kan. 77, 83, 734 P.2d 1096 (1987). In
Clements, the defendant was charged with aggravated criminal sodomy under K.S.A.
1986 Supp. 21-3506, a class B felony. On appeal, this court vacated the sentence and
ordered that Clements be sentenced to the term applicable when one takes indecent
liberties with a child under the age of 14 by performing an act of sodomy, a class C
felony defined by K.S.A. 1984 Supp. 21-3503(1)(b). In reaching this holding, this court
explained:

"Where identical offenses are involved, the question is not truly a matter of one being a
lesser included offense of the other. Each has identical elements and the decision as to
which penalty to seek cannot be a matter of prosecutorial whimsy in charging. As to
identical offenses, a defendant can only be sentenced under the lesser penalty."
(Emphasis added.) Clements, 241 Kan. at 83.

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Through this language this court distinguished the identical offense sentencing doctrine
from lesser included offense principles. This is significant to our discussion because we
are dealing with a lesser included offense as defined by the Kansas Legislature in K.S.A.
21-3107(2)(a) (a lesser included offense is, inter alia, a crime that is a "lesser degree of
the same crime").

Two years later, this court applied the Clements holding to the same statutes—
aggravated sodomy and indecent liberties by committing sodomy—and defined the
doctrine by clarifying the circumstances in which it applied. We stated: "Where two
criminal offenses have identical elements but are classified differently for purposes of
imposing a penalty, a defendant convicted of either crime may be sentenced only under
the lesser penalty provision." (Emphasis added.) State v. Nunn, 244 Kan. 207, 229, 768
P.2d 268 (1989). Significantly, as the emphasized language indicates, the Nunn statement
of the doctrine limited its application to circumstances where two criminal offenses were
being compared.

Subsequently, this court has used the same language in each case where we have
applied the doctrine, and, in each of these cases, the doctrine was applied to two separate
offenses. E.g., State v. Cooper, 285 Kan. 964, 966-67, 179 P.3d 439 (2008) (applying to
K.S.A. 65-4152[a][3] and K.S.A. 65-4159[a]); State v. Fanning, 281 Kan. 1176, 1180,
135 P.3d 1067 (2006) (applying to K.S.A. 65-4152[a][3] and K.S.A. 65-4159); State v.
Cherry, 279 Kan. 535, 538-41, 112 P.3d 224 (2005) (applying to K.S.A. 65-4152[a][3]
and K.S.A. 65-7006); State v. Campbell, 279 Kan. 1, 4, 10, 106 P.3d 1129 (2005)
(applying to K.S.A. 65-4152[a][3] and K.S.A. 65-7006[a]); State v. McAdam, 277 Kan.
136, 145-46, 83 P.3d 161 (2004) (applying to K.S.A. 65-4159[a] and K.S.A. 65-4161[a]).

Hence, the critical language defining the application of the identical offense
sentencing doctrine in our past cases has two components: (1) two criminal offenses that
(2) have identical elements. In contrast, Sandberg attempts to apply the doctrine to
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severity levels of the same offense. This raises the question of whether the doctrine
should apply in the present circumstance.

C. Is Expansion Warranted?

To answer the question of whether Kansas' identical offense sentencing doctrine
should be applied when severity levels of the same offense have overlapping provisions,
we will examine the purpose of and policy underlying the doctrine. In Clements, this
court explained the underlying policy as the need to avoid "prosecutorial whimsy."
Clements, 241 Kan. at 83. This concern was repeated in Nunn, 244 Kan. at 229.
Subsequently, in Cooper, we noted the Clements-Nunn prosecutorial whimsy concern but
also observed that subsequent cases had recognized an additional due process concern,
which we summarized by stating: "[I]t is difficult to discern legislative intent regarding
the level of punishment when two statutes that proscribe the same conduct have identical
elements but differing sentencing provisions." (Emphasis added.) Cooper, 285 Kan. at
968.

In Cooper, we noted that both concerns had been discussed in Campbell, 279 Kan.
at 16. In Campbell, we identified three circumstances where statutory provisions might
have identical elements and we explained the differing due process implications of each
situation, stating:

"'[I]t is useful to think about three types of situations in which a defendant's conduct may
fall within two statutes. They are: (1) where one statute defines a lesser included offense
of the other and they carry different penalties . . . ; (2) where the statutes overlap and
carry different penalties . . . ; (3) where the statutes are identical. . . .

"'The first of the three is certainly unobjectionable. Such provisions are quite
common (robbery-armed robbery; battery-aggravated battery; joyriding-theft;
housebreaking-burglary), and usually are a consequence of a deliberate attempt by the
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legislature to identify one or more aggravated characteristics which in the judgment of
the legislature should ordinarily be viewed as making the lesser crime more serious. They
afford guidance to the prosecutor, but . . . do not foreclose the prosecutor from deciding
in a particular case that, notwithstanding the presence of one of the aggravated facts, the
defendant will still be prosecuted for the lesser offense.

"'By contrast, the third of the three is highly objectionable. It is likely to be a
consequence of legislative carelessness, and even if it is not such a scheme serves no
legitimate purpose. There is nothing at all rational about this kind of statutory scheme, as
it provides for different penalties without any effort whatsoever to explain a basis for the
difference. It cannot be explained in terms of giving assistance to the prosecutor. "Where
statutes are identical except for punishment, the prosecutor finds not the slightest shred of
guidance." It confers discretion which is totally unfettered and which is totally
unnecessary. . . .

"'As for the second of the three categories, it clearly presents a harder case. . . .
[I]n the overlap scheme the two statutes will at least sometimes assist the prosecutor in
deciding how to exercise his charging discretion. "In overlapping statutes, the focus
frequently is on different types of conduct, thus giving the prosecutor at least some idea
of which statute he should proceed under."'" Campbell, 279 Kan. at 14-15 (quoting 4
LaFave, Israel & King, Criminal Procedure § 13.7[a], pp. 95-99 [2d ed. 1999]).

This case falls within the first category—lesser included offenses— that is
"'certainly unobjectionable.' [Citation omitted.]" Campbell, 279 Kan. at 14. As explained
in Campbell, when the legislature creates a hierarchy of degrees of an offense, it provides
guidance as to the aggravating factor or factors. Nevertheless, we emphasized that this
was simply legislative guidance to the prosecutor because nothing "'foreclose[s] the
prosecutor from deciding in a particular case that, notwithstanding the presence of one of
the aggravated facts, the defendant will still be prosecuted for the lesser offense.'
[Citation omitted.]" Campbell, 279 Kan. at 14. In other words, in charging a robbery
offense, a prosecutor could ignore the use of a weapon and decline to charge armed or
aggravated robbery and instead prosecute the lesser offense. Or, in a battery case, the
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prosecutor could ignore a more serious degree of bodily injury and charge battery rather
than aggravated battery. Similarly, a prosecutor charging a violation of K.S.A. 2006
Supp. 21-3523 could choose to ignore the fact a victim was believed to be younger than
14 years of age—the aggravating factor in the electronic solicitation statute—and charge
the defendant with a lesser offense. On the other hand, where the aggravating factor is
factually applicable, the prosecutor may charge the more severe crime.

This conclusion is not altered by the fact the legislature could have easily and
clearly drawn the line between severity levels in K.S.A. 2006 Supp. 21-3523 so there was
no overlap in the defined age ranges. See, e.g., L. 2009, ch. 70, sec. 1 (amending K.S.A.
2006 Supp. 21-3523 to make severity level 3 offense apply only when offender believes
person being enticed or solicited is "14 or more years of age but less than 16 years of
age"); K.S.A. 21-3504(a)(1) (unlawful to have sexual intercourse with a child "who is 14
or more years of age but less than 16 years of age"). The Kansas identical offense
sentencing doctrine does not require this segregation. For example, again using an
example cited in Campbell, 279 Kan. at 14, we have not held that an offender could never
be charged with aggravated robbery because he or she could be charged with a less
severe degree of robbery. Similarly, a prosecutor should not be precluded from charging
an offender with the greater offense of electronic solicitation simply because the offender
could be charged with the lesser offense. This is especially true where, as here, there is a
strong practical rationale for giving a prosecutor discretion when potentially the only
difference between one crime and another is one day on the calendar—e.g., where one
crime occurs the day before the victim's fourteenth birthday and the other occurs on the
victim's fourteenth birthday.

Moreover, K.S.A. 2006 Supp. 21-3523 clearly gives notice of the potential
penalty. As the district court observed, where there is ambiguity it arises because of the
potential for either section to be applied when the offender believes the victim is younger
than 14 years of age. Once again, however, this ambiguity arises in every case where the
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facts fit several severity levels of the same crime. Even though an offender may not know
how a prosecutor will exercise his or her discretion in charging, the offender knows of the
potential. As Sandberg admitted at his plea hearing, he had notice that he could be
sentenced under a severity level 1 person felony.

In other words, there is no more discretion granted to the prosecutor in this case
and no less notice of possible penalties than in other charging situations where a
prosecutor must decide which severity level of the same crime should be charged. We,
therefore, decline to extend Kansas' identical offense sentencing doctrine to the
circumstances of this case and conclude it does not apply to severity levels of the same
offense.

RULE OF LENITY

Sandberg also argues that the rule of lenity requires that he be sentenced under the
lesser of the two severity levels. He cites no separate authority to support this argument.

The rule of lenity is a canon of statutory construction commonly applied in the
criminal law context. State v. Schoonover, 281 Kan. 453, 470, 133 P.3d 48 (2006). It has
no application in this analysis. As we have noted, K.S.A. 2006 Supp. 21-3523 is clear and
unambiguous as written. Although the district court perceived an ambiguity when the
statute is applied to situations where the victim is believed to be younger than 14 years of
age, the ambiguity does not arise because of ambiguity in the language; the provisions are
clearly written and clearly overlap. The perceived ambiguity is whether the legislature
really intended an overlap or wanted a clear segregation that did not leave any
prosecutorial discretion. Nevertheless, courts need not resolve that question because
"'[n]o matter what the legislature may have really intended to do, if it did not in fact do it,
under any reasonable interpretation of the language used, the defect is one which the
legislature alone can correct.' [Citation omitted.]" Kenyon v. Kansas Power & Light Co.,
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254 Kan. 287, 293, 864 P.2d 1161 (1993). Here, regardless of whether the legislature
meant to, it clearly created an overlap, and the only question presented is whether that
overlap violates Sandberg's right to due process. The rule of lenity is not an appropriate
tool for that analysis because the rule does not require a prosecutor to charge the least
severe level in a hierarchy of included offenses. The rule of lenity provides Sandberg no
relief.

We conclude, therefore, that the district court ultimately reached the correct
conclusion that Sandberg could be sentenced to a severity level 1 person felony sentence,
even though the district court used different grounds for reaching that conclusion. See
State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008) (judgment of district court
may be upheld on appeal despite its reliance on the wrong ground). Sandberg was
appropriately sentenced to a severity level 1 person felony.

Affirmed.

* * *

JOHNSON, J., dissenting: I respectfully dissent. If we are going to continue to
recognize the court-made identical offense doctrine in this state, it should apply here.

The majority quotes Campbell's recitation of the three circumstances where
statutory provisions might have identical elements: "'(1) where one statute defines a
lesser included offense of [another offense] and they carry different penalties . . . ; (2)
where the statutes overlap and carry different penalties . . . ; (3) where the statutes are
identical.'" State v. Campbell, 279 Kan. 1, 14, 106 P.3d 1129 (2005) (quoting 4 LaFave,
Israel & King, Criminal Procedure § 13.7(a), p. 95). The majority acknowledges that the
provisions of K.S.A. 21-3523(a)(1) and (a)(2) fit within the second circumstance of
overlapping provisions. However, because the legislature labeled K.S.A. 21-3523(a)(1) as
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a lesser degree of the crime defined in K.S.A. 21-3523(a)(2), the provisions also fall
within the first circumstance of a lesser included offense. The majority opines that lesser
included offenses were never intended to be covered by the identical offense doctrine;
rather, the doctrine only applies where two separate statutes are involved.

If it is true that all lesser included offenses are not subject to the identical offense
doctrine, regardless of whether they fit into another circumstance, then there would be
nothing to prohibit a lesser included offense which is identical to the greater degree of the
crime, i.e., the third circumstance of identical statutory provisions. Accordingly, the
legislature could have made the age of the victim element in both K.S.A. 21-3523(a)(1)
and (a)(2) to be a person younger than 16 years of age, so long as it made one of the
crimes a lesser degree of the other by specifying a lesser penalty. Then, under the
majority's rationale, the identical offense doctrine could not be utilized to prevent a
prosecutor from arbitrarily selecting either punishment for a violation of the identical
statutory provisions, unfettered by the rule of lenity or due process considerations.

As the majority notes, the original rationale for the identical offense doctrine was
that "the decision as to which penalty to seek cannot be a matter of prosecutorial whimsy
in charging." State v. Clements, 241 Kan. 77, 83, 734 P.2d 1096 (1987). Ironically, the
majority justifies excluding from the doctrine those statutory provisions which the
legislature has labeled as lesser included offenses based upon unfettered prosecutorial
discretion. The majority notes that prosecutors are always free to ignore the facts and
choose to prosecute a defendant for a lesser crime, i.e., exercise prosecutorial whimsy in
charging. While the recognition that prosecutorial discretion permits whimsical decision-
making in the real world might counsel against continuing the identical offense doctrine
in this state, I do not view it as justifying the disparate treatment of overlapping
provisions based upon where they are placed in the statute book.

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Moreover, I would note a distinction in the majority's examples of prosecutorial
discretion with respect to lesser included offenses. Those examples require the prosecutor
to ignore a fact, e.g., that the robbery was committed with a deadly weapon or that the
battery victim sustained great bodily harm. In those instances, the lesser included
offenses are a subset of the greater crime because an additional fact must be added to the
lesser included offense to satisfy the elements of the greater offense. Here, if Sandberg
believed that the person he was enticing or soliciting was age 13, then he believed both
that the victim was under the age of 14 years and that the victim was under the age of 16
years. In other words, the greater degree of the crime is a subset of the lesser included
offense because persons under age 14 years are among those persons who are under age
16 years. The prosecutor did not have to ignore any fact in order to legitimately charge
Sandberg under the elements of the lesser crime.

As noted by the majority, the rationale for the doctrine has evolved to include due
process considerations. See State v. Thompson, 287 Kan. 238, 257, 200 P. 3d 22 (2009).
Nevertheless, the majority contends that the overlapping provisions do not violate those
due process considerations because they give appropriate notice of the potential penalties
involved. In that regard, the opinion points out that Sandberg had notice at the plea
hearing that he was charged with the severity level 1 version of the offense. However, in
my view, the notice problem arises at the earlier stage, when the crime is being
committed. "'[A] fair warning should be given to the world in language that the common
world will understand, of what the law intends to do if a certain line is passed.'" Wright v.
Federal Bureau of Prisons, 451 F.3d 1231, 1236 (10th Cir. 2006) (quoting United States
v. Bass, 404 U.S. 336, 348, 30 L. Ed. 2d 488, 92 S. Ct. 515 [1971]) (discussing the
principle of lenity).

I would have required the statute to give more explicit warning as to the
punishment which would be applicable to the proscribed conduct, especially given the
legislature's demonstrated ability to clearly distinguish crime severity based upon the
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victim's age. See, e.g., K.S.A. 21-3504(a)(1) (unlawful to have sexual intercourse with a
child "who is 14 or more years of age but less than 16 years of age"). Accordingly, I
would reverse and remand for resentencing the offense as a severity level 3 person
felony.