                                        No. 118,338


             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                    STATE OF KANSAS,
                                        Appellee,

                                             v.

                                    VALERIE S. BAKER,
                                       Appellant.


                              SYLLABUS BY THE COURT

1.
       K.S.A. 2017 Supp. 21-6608, governing the length of probation, and K.S.A. 2017
Supp. 21-6819(b)(8), governing probations in multiple conviction cases, are considered
and applied when a defendant has been placed on probations of different lengths for
separate crimes in a single case and the district court revokes after some but not all of the
probation periods have been completed. In that circumstance, a defendant cannot be
required to serve the prison sentence for any conviction on which the probation period
ended before revocation proceedings had been initiated.


2.
       Probation is tied to a conviction for a particular charge or crime. In a multiple
conviction case, a district court must impose a specific term of probation for each
conviction. Under K.S.A. 2017 Supp. 21-6819(b)(8), terms of probation cannot be
imposed consecutively in a single case.


3.
       The rule of lenity requires that language in criminal statutes open to more than one
reasonable interpretation be applied to the defendant's advantage.

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4.
        The canon of in pari materia directs that statutes applicable to the same subject be
interpreted in a way that harmonizes their language and operation consistent with
legislative intent.


        Appeal from Johnson District Court; BRENDA M. CAMERON, judge. Opinion filed August 24,
2018. Reversed and vacated.


        Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.


        Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.


Before ARNOLD-BURGER, C.J., ATCHESON, J., and LORI BOLTON FLEMING, District
Judge, assigned.


        ATCHESON, J.: The rule of lenity requires that ambiguous criminal statutes be read
in favor of defendants. Valerie S. Baker gets the benefit of that rule here. As a result, we
find the Johnson County District Court erred in ordering Baker to serve prison sentences
on two forgery convictions, since she had already completed her probation on them even
though she remained on a longer probation for a related theft conviction. We, therefore,
reverse the district court's revocation of the forgery probations and vacate those prison
sentences.


                       BACKGROUND FACTS AND PROCEDURAL HISTORY


        The underlying facts may be briefly sketched. Baker has been caught and
prosecuted for serially embezzling from three employers—bad behavior apparently
fueled, at least in part, by compulsive gambling. In the first case, Baker stole about

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$29,000. She was convicted in 1997, placed on probation, and ordered to pay restitution.
Baker still owed a significant amount of restitution a decade later. In the second case—
the one on appeal here—she embezzled nearly $100,000 from an insurance company
over an extended time. As we discuss in more detail, Baker pleaded guilty to two counts
of forgery and one count of theft in 2012 and was again placed on probation and ordered
to pay restitution. In 2016, Baker was charged with and admitted to stealing from a third
employer, causing the district court to revoke her probation in this case and to order her
imprisonment on the forgery and theft convictions.


       In this case, the district court gave Baker a nine-month prison sentence on each of
the forgery convictions. Those are severity level 8 nonperson felonies. And the district
court gave Baker a 19-month sentence on the theft conviction, a severity level 7
nonperson felony and the "primary crime" for sentencing purposes in this multiple
conviction prosecution. See K.S.A. 2017 Supp. 21-6819 (sentencing in multiple
conviction cases). At the hearing, the district court ordered Baker to serve the three prison
terms consecutively and placed her on probation for 24 months. But the district court did
not attach the 24-month probation to any particular conviction. The journal entry of
judgment identifies a probation of 18 months on each forgery conviction and a probation
of 24 months on the theft.


       Nearly 24 months after the sentencing, the Johnson County District Attorney's
office requested Baker's probation be revoked because she had paid little restitution. The
district court revoked and reinstated Baker's probation and ordered she remain on
probation until she paid the restitution.


       In 2016, the district attorney's office again sought to revoke Baker's probation—
this time based on her third embezzlement. At the revocation hearing in early 2017,
Baker admitted the probation violation. Baker argued that she completed her 18-month
probations and, thus, her sentences on the forgery convictions well before the State took

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any action in this case to revoke her. So, she submitted, only the theft conviction
remained active. The district court disagreed and reasoned that a unitary probation period
of 24 months applied to the case and, therefore, each of the convictions. Based on Baker's
continuing criminal conduct, the district court ordered that she serve the underlying
sentences on the forgery and theft convictions, yielding a prison term of 37 months.
Baker has appealed.


                                     LEGAL ANALYSIS


       On appeal, Baker does not dispute the revocation of her probation on the theft
conviction or the district court's order that she serve the 19-month sentence for it. She
reprises her argument that she completed her probations and sentences on the forgery
convictions and could not have been sent to prison for them in 2017. The issue involves
no disputed facts and turns on an interpretation of the relevant sentencing statutes. We
have before us a question of law on which we owe no particular deference to the district
court's ruling. State v. Turner, 293 Kan. 1085, 1086, 272 P.3d 19 (2012) (statutory
construction presents question of law subject to unlimited review on appeal); State v.
Bennett, 51 Kan. App. 2d 356, 361, 347 P.3d 229 (2015) (when material facts undisputed,
issue presents question of law).


       We begin our analysis with a review of the pertinent sentencing statutes. The
milestones in Baker's prosecution guiding this issue on appeal appear across an extended
timeline: According to the complaint, Baker committed the crimes of conviction between
December 2009 and April 2011; she was charged in September 2011; she pleaded guilty
in April 2012; she was sentenced in June 2012; and her probation was revoked, and she
was sent to prison in February 2017. But the key statutory language has not changed in
that time, although the Kansas Criminal Code was recodified in 2011, so the statutes have
been renumbered. For convenience, we refer to the 2017 version of the code and dispense
with the purely academic exercise of determining whether the code in effect when Baker

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committed the crimes or was sentenced or was revoked and sent to prison technically
governs. The legal analysis and result remain the same regardless.


       As a general matter, probation is tied to a conviction for a particular charge or
crime. It is defined as "a procedure under which a defendant, convicted of a crime, is
released by the court after imposition of a sentence . . . , subject to conditions imposed by
the court." K.S.A. 2017 Supp. 21-6603(g). In turn, "[w]henever any person has been
found guilty of a crime, the court may . . . release the defendant on probation if the
current crime of conviction and criminal history fall within a presumptive nonprison
category or through a departure for substantial and compelling reasons." K.S.A. 2017
Supp. 21-6604(a)(3). In other words, probation entails judicially ordered relief from a
sentence of incarceration imposed as punishment for a defendant's conviction of a
specific criminal charge. A complaint and, thus, a case against a defendant may, of
course, include more than one charged crime. K.S.A. 22-3202(a).


       The term of probation for a conviction is governed by K.S.A. 2017 Supp. 21-6608.
Pertinent here, Baker's theft conviction, as severity level 7 crime, carried a
"recommended duration of probation" of 24 months. K.S.A. 2017 Supp. 21-
6608(c)(1)(B). But the forgery convictions, as severity level 8 crimes, were treated
differently. For a severity level 8 crime, the district court "shall order . . . a period of
probation . . . of up to 18 months." K.S.A. 2017 Supp. 21-6608(c)(4). A district court may
exceed the 18-month cap for a severity level 8 crime if it finds a longer probation would
promote public safety or serve the defendant's welfare and identifies the reasons for the
findings "with particularity." K.S.A. 2017 Supp. 21-6608(c)(5). A similar provision
applies to severity level 9 and 10 crimes and caps probation at 12 months. K.S.A. 2017
Supp. 21-6608(c)(3).


       As we have said, at the sentencing hearing, the district court simply placed Baker
on probation for 24 months after announcing the sentences for the convictions. The

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pronouncement was technically incomplete and should have included a period of
probation for each of the three convictions. K.S.A. 2017 Supp. 21-6819(b)(8). The
district court, however, could not have imposed a probation longer than 18 months on
either of the forgery convictions without making the required statutory findings. It plainly
did not. The journal entry of judgment offered the precision the district court lacked
during the hearing and identified an 18-month probation period for each of the forgery
convictions, in conformity with K.S.A. 2017 Supp. 21-6608(c)(4).


       Finally, we turn to K.S.A. 2017 Supp. 21-6819, governing sentencing in cases
involving multiple convictions. The statute—pivotal here—addresses nonprison
sentences, including probation, this way:


               "If the sentence for the primary crime is a nonprison sentence, a nonprison term
       will be imposed for each crime conviction, but the nonprison terms shall not be
       aggregated or served consecutively even though the underlying prison sentences have
       been ordered to be served consecutively. Upon revocation of the nonprison sentence, the
       offender shall serve the prison sentences consecutively as provided in this section."
       K.S.A. 2017 Supp. 21-6819(b)(8).


The first sentence of that subsection requires the district court to impose a distinct period
of probation for each conviction in a case like Baker's in which the primary crime
includes probation. Moreover, that part of the statute precludes ordering consecutive
periods of probation or otherwise aggregating the time.


       We may reliably conclude Baker had to complete a probation of 18 months for
each of the forgery convictions and each of those terms would run simultaneously with
each other and with the 24-month probation she received on the theft conviction. All of
that strongly suggests Baker completed her probation on the forgeries in early December
2013—well before the district attorney's office first sought to revoke her probation for
unpaid restitution in May 2014. As provided in K.S.A. 2017 Supp. 22-3716(e), a district

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court has 30 days after a probation period ends to notify a defendant of any apparent
violation of the probation conditions. So the district court would have had to begin the
process of revoking and extending Baker's probation on the forgery convictions for
nonpayment of restitution (or some other reason) no later than January 2014. Because
nothing happened until about four months later, Baker had completed the probation and
sentence for each of the forgery convictions. All of those statutory provisions support the
conclusion the district court could not have ordered Baker to serve any prison time on the
forgeries when it revoked her probation in 2016. Only the sentence on the theft
conviction remained uncompleted.


       Arguably, however, the second sentence of K.S.A. 2017 Supp. 21-6819(b)(8) casts
a shadow on that otherwise seemingly clear result. The phrase "the nonprison sentence"
in that part of the subsection injects ambiguity. As a definite article, "the" would seem to
refer to revocation of one particular sentence among the others in what, by definition, is a
multiple conviction case. That part of the subsection then directs the defendant "shall
serve the prison sentences consecutively," a plural reference to more than one sentence.
The phrase could refer to the sentence for the primary crime, and so the subsection would
ostensibly require the defendant to serve all of the prison sentences on all of the crimes.
That construction would effectively override the provisions in K.S.A. 2017 Supp. 21-
6608 capping probation periods for lower severity crimes, like the forgeries, if they were
combined in one case with higher severity crimes for which the district court had
imposed longer "recommended" probations. And it would ignore the sense of the first
part of K.S.A. 2017 Supp. 21-6819(b)(8) contemplating separate probations, which could
vary in length. Alternatively, the phrase simply could refer to the nonprison sentence
being revoked, which presumably could or would trigger revocation of any other
probations still in effect for other convictions in the multiple conviction case.


       The second sentence of K.S.A. 2017 Supp. 21-6819(b)(8) may be based on an
assumption the probation period for each crime in a multiple conviction case would be

                                              7
the same. That is likely true in many (and perhaps most) instances. But it would not
invariably be so, as this case illustrates. In short, K.S.A. 2017 Supp. 21-6819(b)(8) is
susceptible to two conflicting readings—one favoring the position of the district
attorney's office and one favoring Baker.


       When the language of a criminal statute fosters a genuine ambiguity, the rule of
lenity requires the courts to apply a reasonable reading favoring the defendant. State v.
Coman, 294 Kan. 84, Syl. ¶ 5, 273 P.3d 701 (2012) ("Under the rule of lenity, criminal
statutes must be strictly construed in favor of the defendant."); see State v. Barlow, 303
Kan. 804, 813, 368 P.3d 331 (2016). As a canon of construction, lenity directs that "[a]ny
reasonable doubt as to the meaning of a criminal statute" must go to the accused. Coman,
294 Kan. 84, Syl. ¶ 5. The rule of lenity inures to Baker's benefit and confirms the
argument that she had completed the probation and sentences on the forgeries before the
district attorney's office ever sought to revoke her probation and long before the district
court ordered her to prison.


       A second canon—the concept of in pari materia interpretation—also supports
Baker's position and underscores the reasonableness of applying the rule of lenity to
K.S.A. 2017 Supp. 21-6819(b)(8). That canon calls for reading an ambiguous statute in a
way that harmonizes its language and operation with related statutes. See In re Estate of
Rickabaugh, 51 Kan. App. 2d 902, Syl. ¶ 6, 358 P.3d 859 (2015) ("The canon of in pari
materia calls for related statutes to be construed in a harmonious way, reconciling
apparent conflicts, if possible, to effectuate legislative intent."), aff'd 305 Kan. 921, 390
P.3d 19 (2017). As we have suggested, construing K.S.A. 2017 Supp. 21-6819(b)(8) to
support incarcerating Baker on the forgery convictions some three years after she
completed the probation periods on them would negate the operation of K.S.A. 2017
Supp. 21-6608(c)(3) and (c)(4) that establish fixed upper limits on probation periods for
low severity level crimes. If K.S.A. 2017 Supp. 21-6819(b)(8) were applied that way, it
would effectively extend the probation periods for those crimes to match the longest

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probation period imposed in a multiple conviction case. We are disinclined to take that
approach, since it both collides with the intent behind K.S.A. 2017 Supp. 21-6608(c) and
runs counter to the in pari materia canon.


       Had the Legislature intended that sort of modification of probation periods, it
presumably would have chosen a more obvious means of achieving its desired outcome.
For example, the Legislature could have included a specific exception to those probation
caps in K.S.A. 2017 Supp. 21-6608(c)(5) for multiple conviction cases by conforming the
probation periods for low felonies to the probation period for the primary crime of
conviction or the longest probation period imposed. Such an exception would logically fit
in K.S.A. 2017 Supp. 21-6608(c)(5), joining the exceptions for public safety and the
defendant's welfare. The single cryptic sentence in K.S.A. 2017 Supp. 21-6819(b)(8)
doesn't capture a similarly identifiable legislative intent.


       In conclusion, we find Baker had already completed her probation and satisfied
the sentence on each of the forgery convictions when the district court revoked her
probation and ordered her to prison. Baker could be required to serve only the sentence
on the theft conviction, which she had yet to complete.


       We, therefore, reverse the district court's revocation of Baker's probations on the
forgery convictions and vacate the resulting sentences of imprisonment for those
convictions.




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