                 IN THE SUPREME COURT OF THE STATE OF KANSAS

                                             No. 111,279

                                         STATE OF KANSAS,
                                             Appellee,

                                                   v.

                                          JEROME CHEEKS,
                                             Appellant.


                                  SYLLABUS BY THE COURT


        An individual who is in prison at the time he or she files a petition for
postconviction DNA testing under K.S.A. 21-2512 satisfies the "in state custody"
requirement of the statute.


        Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed June 19,
2015. Reversed and remanded.


        Paul M. Dent, of Kansas City, argued the cause and was on the brief for appellant.


        Jerome A. Gorman, district attorney, argued the cause, and Derek Schmidt, attorney general, was
on the brief for appellee.


        BEIER, J.: This appeal arises from a second district court denial of defendant
Jerome Cheeks' petition for postconviction DNA testing. We reverse and remand for
further proceedings.




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                        FACTUAL AND PROCEDURAL BACKGROUND


       Cheeks was convicted in 1993 of the second-degree murder of his wife. Cheeks
received a prison sentence of 15 years to life imprisonment. This court affirmed his case
on direct appeal. State v. Cheeks, 258 Kan. 581, 908 P.2d 175 (1995). We also affirmed a
later district court denial of Cheeks' pro se motion to correct an illegal sentence. State v.
Cheeks, 280 Kan. 373, 121 P.3d 989 (2005).


       In March 2009, Cheeks filed a pro se petition for postconviction DNA testing
under K.S.A. 21-2512. The petition was summarily denied because the statute limited the
availability of such testing to cases involving convictions of first-degree murder under
K.S.A. 21-3401 or of rape under K.S.A. 21-3502. Cheeks appealed to this court and
prevailed. State v. Cheeks, 298 Kan. 1, 3, 310 P.3d 346 (2013). We extended K.S.A. 21-
2512 to Cheeks and other similarly situated individuals under the authority of the Equal
Protection Clause of the United States Constitution. 298 Kan. at 11.


       While this last appeal was still pending, in May 2013, Cheeks was released from
prison and placed on lifetime parole. His DNA testing petition was taken up again in
district court, and the judge denied it after hearing. The judge rejected Cheeks' argument
that Cheeks' satisfaction of the statute's "in state custody" requirement should be
evaluated as of the time the petition was filed; instead the judge evaluated it as of the
time the petition was heard in district court. Cheeks was on parole by that time, and the
judge ruled that the legislature did not intend to allow consideration of K.S.A. 21-2512
petitions from individuals on conditional release.




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                                               DISCUSSION


       This appeal requires this court to interpret a statute. Statutory interpretation and
construction raise questions of law reviewable de novo on appeal. State v. Hobbs, 301
Kan. 203, 206, 340 P.3d 1179 (2015).


               "The most fundamental rule of statutory construction is that the intent of the
       legislature governs if that intent can be ascertained. State v. Arnett, 290 Kan. 41, 47, 223
       P.3d 780 (2010). But if a statute is plain and unambiguous, this court will not speculate
       about legislative intent or turn to canons of construction or legislative history. State v.
       Coman, 294 Kan. 84, 92, 273 P.3d 701 (2012). On the other hand, where a criminal
       statute is silent or ambiguous on a matter, the rule of lenity applies to mandate that the
       statute be construed in favor of the accused. Cf. State v. Thompson, 287 Kan. 238, 249,
       200 P.3d 22 (2009) (statute silence or ambiguity on unit of prosecution construed in favor
       of defendant)." State v. Reese, 300 Kan. 650, 653, 333 P.3d 149 (2014).


       K.S.A. 21-2512 states in pertinent part:


               "(a) Notwithstanding any other provision of law, a person in state custody, at any
       time after conviction for murder as defined by K.S.A. 21-3401, and amendments thereto,
       or for rape as defined by K.S.A. 21-3502, and amendments thereto, may petition the court
       that entered the judgment for forensic DNA testing (deoxyribonucleic acid testing) . . . ."


       The parties focus most of their energy on determining whether, after having been
released on parole, Cheeks remained "in state custody" for purposes of K.S.A. 21-2512.
But we hold today that the plain language of the statute dictates an outcome in Cheeks'
favor without the necessity of reaching that question. The statute does not require that an
individual be in state custody when a petition is heard. Rather, the statute makes the
custody status of the convicted person of interest only at the time the petition is filed: A
"person in state custody . . . may petition the court that entered the judgment for forensic

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DNA testing." (Emphasis added.) K.S.A. 21-2512. The legislature's use of the present
tense in that sentence tells all.


       Because there is no dispute that Cheeks remained in prison at the time his K.S.A.
21-2512 petition for DNA testing was filed, he was "in state custody" at the relevant
time. This case must be remanded again to the district court so that the merits of the
petition may be considered.


                                       CONCLUSION


       The district judge's ruling denying Cheeks' petition is reversed, and the case is
remanded to the district court for further proceedings under K.S.A. 21-2512.


                                           ***


       ROSEN, J., dissenting: I agree with the majority that under the plain language of
K.S.A. 21-2512, Cheeks' custodial status at the time he filed his requested relief allows
the petition for postconviction DNA testing to go forward.


       However, I do not agree that Cheeks is entitled to the relief he continues to seek.
Based on the reasoning set forth in my dissent in State v. Cheeks, 298 Kan. 1, 17-20, 310
P.3d 346 (2013), I would deny his request and dismiss the petition.


       STEGALL, J., joins in the foregoing dissenting opinion.




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