               IN THE SUPREME COURT OF THE STATE OF KANSAS

                                         No. 113,585

                                      STATE OF KANSAS,
                                          Appellee,

                                               v.

                                     NICHOLAS CORBIN,
                                         Appellant.


                               SYLLABUS BY THE COURT

1.
       An appellate court reviews a district court's ruling on a motion to determine if a
defendant is a person with intellectual disability for abuse of discretion.


2.
       Judicial discretion is abused if judicial action is (1) arbitrary, fanciful, or
unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial
court; (2) based on an error of law, i.e., if the discretion is guided by an erroneous legal
conclusion; or (3) based on an error of fact, i.e., if substantial competent evidence does
not support a factual finding on which a prerequisite conclusion of law or the exercise of
discretion is based.


3.
       K.S.A. 2015 Supp. 21-6622 precludes a district court from imposing a sentence of
death, life without possibility of parole, or mandatory term of imprisonment for
premeditated first-degree murder upon a defendant determined to be a person with
intellectual disability.

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4.
        To make the required determination of intellectual disability, a district court must
apply that phrase's statutory meaning as provided by K.S.A. 2015 Supp. 21-6622 and the
2016 amendments to K.S.A. 76-12b01.


5.
        The 2016 legislature amended K.S.A. 76-12b01(i) to allow defendants to establish
subaverage general intellectual functioning by means in addition to standardized
intellectual testing.


        Appeal from Saline District Court; PATRICK H. THOMPSON, judge. Opinion filed December 23,
2016. Reversed and remanded with directions.


        Joanna Labastida and Randall L. Hodgkinson, of Kansas Appellate Defender Office, were on the
briefs for appellant.


        Ellen Hurst Mitchell, county attorney, and Derek Schmidt, attorney general, were on the briefs for
appellee.


The opinion of the court was delivered by


        NUSS, C.J.: Nicholas Corbin pled no contest to the premeditated first-degree
murder of his 3-month-old son. Before sentencing, he filed a motion pursuant to K.S.A.
2015 Supp. 21-6622(b) requesting that the district court determine if he was a person
with "intellectual disability." The court denied the motion and sentenced Corbin to a hard
25 life sentence. After sentencing but during this appeal, the legislature amended the
statute that supplies part of the definition of intellectual disability in K.S.A. 2015 Supp.
21-6622(b).


                                                    2
       Because we conclude those amendments require consideration by the district court
in its intellectual disability calculus, we reverse and remand with instructions.


                            FACTS AND PROCEDURAL HISTORY

       The facts are undisputed. Nicholas Corbin and his girlfriend, Desirah Overturf,
decided to stop feeding their infant son when he turned 2 months old. In addition to
starving the baby, Corbin (1) held him upside down by his feet in a stream of water to
bathe him and (2) burned his stomach with a hot baby bottle. When the couple did feed
their son, Corbin held the baby's arms behind his back.


       One night Overturf noticed her son was no longer breathing and she believed him
dead. Corbin put the baby in a bowl of warm water because he had become cold to the
touch. He eventually called 911, and upon arrival the emergency responders pronounced
the baby dead. Overturf estimated to the police that her son had been fed only 15 out of
the 30 days before his death.


       Corbin pled no contest to one count of premeditated first-degree murder, an off-
grid person felony. Before sentencing, he filed a motion pursuant to K.S.A. 2015 Supp.
21-6622(b) and requested the court determine if he was a person with "intellectual
disability." Per subsection (f) of the statute, such a person would not be subject to a
"mandatory term of imprisonment" as part of his or her sentence. K.S.A. 2015 Supp. 21-
6622(f).


       The court considered Corbin's motion and two evaluations he provided. One was
conducted by Trevor Patton, Ph.D., of The Therapy Center, and another by Roy Daum,
Psy.D., of Larned State Hospital as part of Corbin's presentence investigation.



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       Emphasizing the testing described in the reports, the court concluded there was not
sufficient reason to believe Corbin was a person with intellectual disability:


               "The Court's reviewed the reports and the Court does not find that the defendant
       has significantly subaverage general intellectual functioning based upon the testing.


               "Court would note that Dr. Patton's findings was there's a full scale IQ score of
       95 for the defendant, which is in the lower end of the average range; that his general
       cognitive ability is in the lower end of the average range; that his word recognition,
       spelling, arithmetic are all in the lower end of the average range.


               "Larned State Hospital [Dr. Daum] found there was some mild intellectual
       disability range of intellectual functioning, but does not find that he was significantly
       subaverage. Matter of fact in the RIAS testing it [was] described as moderately below
       average intellectual functioning within the designated areas, but there is some evidence of
       limited—limited intellectual adaptive behavior functioning.


               "Based upon the two reports the court does not find they establish in this court's
       view sufficient reason to believe that Mr. Corbin is a person with intellectual disability as
       it's defined by this statute and there certainly is nothing in the reports to indicate that
       it's—any intellectual disability he may have, however slight or lower end of the range,
       substantially impaired his capacity to appreciate the criminality of one's conduct or to
       conform one's conduct to the requirements of law.


               "Matter of fact, Larned State Hospital noted statements made by Mr. Corbin as to
       actions he might take once he was in the Department of Corrections and that they
       believed he understood exactly what he was saying and took that very seriously, which
       would not indicate they believed that it was impairing his capacity to understand the
       criminality of the conduct or to conform his behavior, that he had made a conscious
       decision to possibly take such action."




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       At sentencing, the court rejected Corbin's renewed motion to find he suffered from
an intellectual disability:


       "[T]he court's findings would be the same as I made last week when I heard that motion. The
       court does not believe that the reports submitted to the court support a finding that Mr. Corbin is
       suffering from an intellectual disability as defined by the statute." (Emphasis added.)


       The court sentenced Corbin to a hard 25 life sentence. Corbin timely appealed his
sentence.


       The parties filed a joint motion to waive oral argument. We denied it and instead
ordered supplemental briefing on the effect, if any, of a later amendment to a statute—
K.S.A. 76-12b01—that supplies part of the definition of intellectual disability in K.S.A.
2015 Supp. 21-6622(b). Both parties responded and later submitted a renewed motion to
waive oral argument which this court granted.


       Our jurisdiction is under K.S.A. 2015 Supp. 22-3601(b)(3), (4) (maximum
sentence of life imprisonment imposed for an off-grid crime [first-degree murder]).


       More facts will be added as necessary to the analysis.

                                              ANALYSIS

Issue: Did the district court err when it denied Corbin's motion to determine if he is a
person with intellectual disability?

       Corbin presents only one issue: Whether the district court should have determined
there was "sufficient reason to believe" that he was a person with an intellectual disability
under K.S.A. 2015 Supp. K.S.A. 21-6622(b). He specifically argues that enough evidence
exists to warrant an evidentiary hearing under 21-6622(b) and (c). The State counters that
                                                    5
Corbin did not make a sufficient showing of intellectual disability to warrant a full
evidentiary hearing on his status.


       Standard of review

       When reviewing the district court's denial of a defendant's motion to determine if
he or she is a person with intellectual disability, this court applies an abuse of discretion
standard. State v. Maestas, 298 Kan. 765, 785, 316 P.3d 724 (2014) (reviewing previous
version of intellectual disability statute, K.S.A. 21-4634); State v. Backus, 295 Kan. 1003,
1015, 287 P.3d 894 (2012) (same).


       Our abuse of discretion standard is well-established:


       "'Judicial discretion is abused if judicial action: (1) is arbitrary, fanciful, or unreasonable,
       i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is
       based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion;
       or (3) is based on an error of fact, i.e., if substantial competent evidence does not support
       a factual finding on which a prerequisite conclusion of law or the exercise of discretion is
       based.'" State v. Shank, 304 Kan. 89, 92, 369 P.3d 322 (2016).


       The party asserting an abuse of discretion bears the burden of establishing such
abuse. See State v. Schow, 287 Kan. 529, 541, 197 P.3d 825 (2008). So that burden is
Corbin's.


       Discussion

       K.S.A. 2015 Supp. 21-6622 precludes a district court from imposing a sentence of
death, life without possibility of parole, or a mandatory term of imprisonment for
premeditated first-degree murder upon a defendant determined to be a person with

                                                      6
intellectual disability. To determine who falls under the statutory protections, the statute
creates a "two-step process for a district court to consider a convicted defendant's claim
of [intellectual disability]." See Maestas, 298 Kan. at 783.


       First, subsection (b) establishes a threshold requirement that the district court must
determine, without a hearing, whether there is "sufficient reason to believe" the defendant
is a person with intellectual disability:


       "[I]f a defendant is convicted of the crime of murder in the first degree based upon the
       finding of premeditated murder, the defendant's counsel . . . may request a determination
       by the court of whether the defendant is a person with intellectual disability. [1] If the
       court determines that there is not sufficient reason to believe that the defendant is a
       person with intellectual disability, the court shall so find and the defendant shall be
       sentenced in accordance with K.S.A. 21-6620, 21-6623, 21-6624 and 21-6625, and
       amendments thereto. [2] If the court determines that there is sufficient reason to believe
       that the defendant is a person with intellectual disability, the court shall conduct a
       hearing to determine whether the defendant is a person with intellectual disability."
       (Emphasis added.) K.S.A. 2015 Supp. 21-6622(b).


       Per the statute, if the court does not find sufficient reason to believe the defendant
is a person with intellectual disability, then he or she is sentenced under K.S.A. 2015
Supp. 21-6620, K.S.A. 2015 Supp. 21-6623, K.S.A. 2015 Supp. 21-6624, and K.S.A.
2015 Supp. 21-6625—i.e., the defendant is given a standard sentence. But if the court
does find sufficient reason to believe "the defendant is a person with intellectual
disability," then it proceeds to a full hearing on that issue. (Emphasis added.) K.S.A.
2015 Supp. 21-6622(b).




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       For this second step of the process, subsection (c) provides the procedure the court
follows at the full hearing:


               "At the hearing, the court shall determine whether the defendant is a person with
       intellectual disability. The court shall order a psychiatric or psychological examination of
       the defendant. For that purpose, the court shall appoint two licensed physicians or
       licensed psychologists, or one of each, qualified by training and practice to make such
       examination, to examine the defendant and report their findings in writing to the judge
       within 14 days after the order of examination is issued. The defendant shall have the right
       to present evidence and cross-examine any witnesses at the hearing." (Emphasis added.)
       K.S.A. 2015 Supp. 21-6622(c).


       Next, subsections (e) and (f) provide guidance to the court—depending on the
outcome of the full hearing. If the court ultimately determines the defendant is not a
person with intellectual disability, then he or she is sentenced in accordance with K.S.A.
2015 Supp. 21-6620, 21-6623, 21-6624, and 21-6625. K.S.A. 2015 Supp. 21-6622(e).
But if the court determines the defendant "is a person with intellectual disability," then it
cannot sentence him or her to death, life without the possibility of parole, or to a
mandatory term of imprisonment. (Emphasis added.) K.S.A. 2015 Supp. 21-6622(f).


       To make the findings required under K.S.A. 2015 Supp. 21-6622(b) concerning
intellectual disability, the district court must apply that phrase's statutory meaning. See
Maestas, 298 Kan. at 783. Two separate statutes supply that definition. 298 Kan. at 783.


       First, subsection (h) of K.S.A. 2015 Supp. 21-6622 defines intellectual disability
as "having significantly subaverage general intellectual functioning, as defined by K.S.A.
76-12b01, and amendments thereto, to an extent which substantially impairs one's
capacity to appreciate the criminality of one's conduct or to conform one's conduct to the
requirements of law." (Emphasis added.)

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       In turn, subsection (i) of K.S.A. 76-12b01 defines "significantly subaverage
general intellectual functioning." Before July 1, 2016, subsection (i) exclusively defined
it as "performance which is two or more standard deviations from the mean score on a
standardized intelligence test specified by the secretary."


       But the 2016 legislature amended the statute to include additional ways of
establishing subaverage general intellectual functioning beyond particular performance
on standardized intelligence tests. It now provides:


               "'[1] Significantly subaverage general intellectual functioning' may be established
       by performance which is two or more standard deviations from the mean score on a
       standardized intelligence test specified by the secretary. Such standardized intelligence
       test shall take into account the standard error of measurement, [2] and subaverage
       general intellectual functioning may be established by means in addition to standardized
       intellectual testing. The amendments made to this subsection by this act shall be
       construed and applied retroactively." (Emphasis added.) L. 2016, ch. 108, sec. 1.


       This court has stated: "When an applicable statute is amended while an appeal is
pending, and counsel for both sides have had an opportunity to brief and argue the
amended statute, the appellate court will consider and construe the amended version of
the statute." State ex rel. Secretary of SRS v. Bohrer, 286 Kan. 898, 904, 189 P.3d 1157
(2008). In the instant case, we provided both parties those opportunities. So we may
consider the amended statute. See 286 Kan. at 904.


       Now that we have determined to consider the amended statute, the next question is
whether we will apply it retroactively. See Bohrer, 286 Kan. at 904 (deciding to consider
amendment on appeal and then determining whether it should be applied retroactively).
Generally, a statute operates prospectively unless there is clear language indicating the
                                                    9
legislature intended it to operate retrospectively. Brennan v. Kansas Insurance Guaranty
Ass'n, 293 Kan. 446, 460, 264 P.3d 102 (2011).


       But here the parties do not challenge the retroactive application of the
amendments. Accordingly, for purposes of this appeal, we assume without deciding that
those amendments apply retroactively. See Keiswetter v. State, 304 Kan. 362, 367, 373
P.3d 803 (2016); see also State v. Sutherland, 248 Kan. 96, 106-07, 804 P.2d 970 (1991)
(assuming a statute was constitutional because constitutionality was not challenged).


       Corbin argues that, at a minimum, this court should remand for a new hearing to
apply the amended statute. Specifically, he argues the district court used a defunct legal
standard which makes it impossible to review that court's decision for abuse of discretion.


       The State responds that the amended definition does not change the outcome of
the case because the new definition does not impact the district court's findings of fact or
conclusions of law. See, e.g., Stueckemann v. City of Basehor, 301 Kan. 718, 750-51, 348
P.3d 526 (2015) (affirming district court's inquiry that met the expansive concept of
reasonableness in test later articulated by the supreme court).


       We disagree with the State. To make the required determination of intellectual
disability, a district court must look at the definition provided in K.S.A. 76-12b01. Here,
the parties and district court only had an opportunity to consider and apply the version of
K.S.A. 76-12b01 that predated the 2016 amendments. It exclusively defined significant
subaverage general intellectual functioning as "performance which is two or more
standard deviations from the mean score on a standardized intelligence test." K.S.A. 2015
Supp. 76-12b01(i). The findings of the district court reveal it understandably followed
that narrow statutory course.


                                             10
       Corbin submitted two evaluations as evidence of his intellectual disability. The 14-
page report by Dr. Patton disclosed a "[f]ull [s]cale IQ score of 95, which is in the lower
end of the average range." The court specifically cited the results of that score-generating
test—according to the record, a "Wechsler Adult Intelligence Scale, 4th Edition (WAIS-
IV)"—to support its finding that "based upon the testing," Corbin did not have
"significantly subaverage general intellectual functioning." See United States v.
Arterberry, 2015 WL 1004725, at *2 (E.D. Mich. 2015) (unpublished opinion) (WAIS-
IV is "often considered the 'gold standard' in intelligence testing, provides an
'approximation of an individual's overall cognitive functioning' and includes various
subsections to test different cognitive abilities.").


       The court also cited the result of Corbin's second evaluation—specifically, "RIAS
[Reynolds Intellectual Assessment Scales] testing" by Dr. Daum at the Larned State
Hospital—as additional support for its finding that Corbin did not have "significantly
subaverage general intellectual functioning based upon the testing." Dr. Daum's 9-page
report describes it as "a norm-referenced individually administered test of intelligence
that can provide an overall measure of intelligence based on two index scores: Verbal
Intelligence Index (VIX) and the Nonverbal Intelligence Index (NIX)." As correctly
stated by the court, Dr. Daum's report showed RIAS testing of Corbin revealed only
"moderately below average intellectual functioning within the designated areas."


       Indeed, outside of the court's reference to some statements Corbin made regarding
actions he might take once he was in the Department of Corrections, it exclusively relied
upon the results of these two standardized intelligence tests.


       The State acknowledges that the statutory amendments permit the determination of
intellectual disability to be established by means in addition to standardized intellectual
testing and points out that Corbin presented evidence in addition to a mean score on such
                                               11
tests. For example, the two reports also included information about Corbin's psychiatric
and social history and the interviewing doctors' observations. But just as the original
statute led the district court to focus on the results of the standardized intelligence tests, it
may also have caused Corbin to feel prohibited from submitting evidence of additional
means in order to establish his intellectual disability—means now permitted under the
new definition.


       Given our assumption that the 2016 amendments to K.S.A. 76-12b01 apply
retroactively, then we must remand under these circumstances. See State v. Garza, 295
Kan. 326, 335, 286 P.3d 554 (2012) (an appellate court does not serve as a finder of fact).
Contrary to Corbin's request, however, we do not order a hearing under K.S.A. 2015
Supp. 21-6622(c). Rather, we conclude that the best course is to afford the district court
an opportunity to review Corbin's motion again under K.S.A. 2015 Supp. 21-6622(b)—
but with a wider outlook. In that review, after again considering the reports of Drs. Patton
and Daum, the court may decide to allow additional evidence.


       Accordingly, we reverse and remand to the district court with directions to
reconsider Corbin's motion under the current version of K.S.A. 76-12b01 in conjunction
with K.S.A. 2015 Supp. 21-6622(b).




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