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Enhanced sentence must be based on prior predicate offense

By Randall Hodgkinson

Michael Holland and Michael Holland II won in State v. Ruiz-Reyes, No. 95,056 (Kan. Feb. 1, 2008), getting a reduced sentence on a Reno County possession with intent to sell conviction. The COA had held that before a drug conviction could be enhanced based on a prior conviction, the prior conviction had to be entered before the instant offense (in contrast to the way that criminal history works). Here is my blog entry on the COA case. The KSC agreed with the COA that no construction was necessary; the plain language of the statute requires that the defendant "have" a prior conviction at the time of the instant offense for the instant offense to be enhanced:

Application of the plain language of K.S.A. 65-4161(a) and (b) to the facts of this case yields the following results: Ruiz-Reyes is a person who violated K.S.A. 65-4161(a) by reason of his June 10, 2005, Reno County conviction for possession of cocaine with intent to distribute. However, at the time the defendant committed the offense that led to the Reno County conviction in 2000, he did not have "one prior conviction under this section," as he was not convicted in Ford County of possession of methamphetamine with intent to sell until 2004. See K.S.A. 65-4161(b). The inescapable conclusion is that Ruiz-Reyes did not "ha[ve]" his 2004 conviction when he "violate[d]" K.S.A. 65-4161 in Reno County in 2000. Therefore, the defendant's conduct does not comport with the plain language of K.S.A. 65-4161(b), and he could not be "guilty of a drug severity level 2 felony" under the statute.

As I previously blogged, it seems like there is an ever expanding list of "special rules" that depend on "prior offenses," so this case may have application outside of the drug arena.

Full post as published by Kansas Defenders on February 01, 2008 (boomark / email).