                                       No. 112,351

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                    STATE OF KANSAS,
                                        Appellee,

                                               v.

                                  JOSEPH L. SWAZEY, III,
                                       Appellant.


                             SYLLABUS BY THE COURT

1.
       An illegal sentence may be corrected at any time, even if the argument is raised for
the first time on appeal.


2.
       An illegal sentence is: (1) a sentence imposed by a court without jurisdiction; (2) a
sentence that does not conform to the applicable statutory provision, either in character or
term of authorized punishment; or (3) a sentence that is ambiguous with respect to the
time and manner in which it is to be served.


3.
       Under K.S.A. 2014 Supp. 21-6824(b)-(c), if an offender is assigned a high risk
status by a drug abuse assessment and either a moderate or high risk status by a criminal
risk-need assessment, then the sentencing court is required to commit the offender to
treatment in a drug abuse treatment program until the court determines the offender is
suitable for discharge by the court, but in no case longer than 18 months.




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4.
         The mandatory drug treatment provision in K.S.A. 2014 Supp. 21-6824(a)(1)
conflicts with K.S.A. 2014 Supp. 21-6805(d), which establishes an optional nonprison
sentence for certain offenders.


5.
         When a statute is plain and unambiguous, this court does not speculate as to the
legislative intent behind it and will not read into the statute something not readily found
in it.


6.
         With any perceived ambiguity, this court must determine if it is possible to
interpret the provisions of the various statutes in play in a way that renders them
compatible, not contradictory.


7.
         A specific statute controls over a general statute.


8.
         Even when statutory language is clear, this court must construe statutes to avoid
unreasonable or absurd results.


9.
         When there is ambiguity between statutory provisions imposing a penalty for a
crime, it should be resolved in a defendant's favor.


         Appeal from Jackson District Court; MICHEAL A. IRELAND, judge. Opinion filed October 2,
2015. Sentence vacated; remanded with directions.



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        Joanna Labastida, of Kansas Appellate Defender Office, for appellant.


        Tim Liesmann, assistant county attorney, and Shawna Miller, county attorney, and Derek
Schmidt, attorney general, for appellee.


Before HILL, P.J., BUSER, J., and WILLIAM R. MOTT, District Judge, assigned.


        MOTT, J.: Joseph L. Swazey, III, appeals his sentence for one count of possession
of methamphetamine and one count of fleeing or attempting to elude a police officer. He
argues the district court imposed an illegal sentence by sentencing him to prison instead
of drug treatment pursuant to K.S.A. 2014 Supp. 21-6824.


Facts


        On June 26, 2014, Swazey pled no contest to one count of possession of
methamphetamine and one count of fleeing or attempting to elude a police officer. The
district court accepted his pleas and found him guilty of both offenses. Prior to
sentencing, Swazey filed a motion seeking a downward dispositional or durational
departure. In it, he requested that he be sentenced either to probation and drug treatment
or, alternatively, to a term of 24 months' imprisonment. Swazey's criminal history placed
him in drug grid block 5-C, a border box.


        Swazey's sentencing hearing was held on July 25, 2014. During the hearing,
Swazey's attorney requested that Swazey receive "Senate Bill 123 treatment," referring to
drug treatment. The district court denied this request and sentenced him to a controlling
durational departure sentence of 24 months in prison. Swazey appeals his sentence.




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An illegal sentence may be corrected at any time


       Swazey argues that K.S.A. 2014 Supp. 21-6824 required the district court to grant
him probation with drug treatment rather than a prison sentence. As such, Swazey argues
that his prison sentence was an illegal sentence. Although Swazey requested drug
treatment at sentencing, he did not specifically raise this argument below. But an illegal
sentence may be corrected at any time, even if the argument is raised for the first time on
appeal. State v. Kelly, 298 Kan. 965, 975, 318 P.3d 987 (2014); K.S.A. 22-3504.


               "An 'illegal sentence' is: (1) a sentence imposed by a court without jurisdiction;
       (2) a sentence that does not conform to the applicable statutory provision, either in
       character or term of authorized punishment; or (3) a sentence that is ambiguous with
       respect to the time and manner in which it is to be served." State v. Taylor, 299 Kan. 5, 8,
       319 P.3d 1256 (2014).


Whether a sentence is illegal is a question of law subject to de novo review by this court.
Kelly, 298 Kan. at 975.


The optional nonprison sanction statute vs. the mandatory drug treatment statute


       Swazey argues that the nonprison sanction outlined in K.S.A. 2014 Supp. 21-6824
is mandatory and controls in this case. The State, however, argues that K.S.A. 2014 Supp.
21-6824 is not mandatory and should be interpreted in a way that does not conflict with
the optional nonprison sanction as contemplated by K.S.A. 2014 Supp. 21-6805(d). To
resolve these arguments, this court must engage in statutory interpretation, which is a
question of law subject to unlimited review. State v. Kendall, 300 Kan. 515, 520, 331
P.3d 763 (2014).


       K.S.A. 2014 Supp. 21-6824(a) establishes a nonprison sanction of certified drug
abuse treatment programs for certain offenders sentenced on or after November 1, 2003.
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Under the statute, placement of adults in such treatment programs is limited to those
convicted of certain crimes, such as unlawful possession of controlled substances. See
K.S.A. 2014 Supp. 21-6824(a). A defendant further qualifies for treatment under the
statute if he or she has no previous felony convictions for certain drug crimes and falls
into grid blocks 5-C, 5-D, 5-E, 5-F, 5-G, 5-H, or 5-I of the sentencing guidelines for drug
crimes. K.S.A. 2014 Supp. 21-6824(a)(1). Swazey met these requirements because his
primary offense was possession of methamphetamine and his criminal history placed him
in grid block 5-C. But these are not the only qualifications listed in the statute.


       K.S.A. 2014 Supp. 21-6824(b)-(c) also states:


               "(b) As a part of the presentence investigation pursuant to K.S.A. 2014 Supp. 21-
       6813, and amendments thereto, offenders who meet the requirements of subsection (a),
       unless otherwise specifically ordered by the court, shall be subject to:
               (1) A drug abuse assessment which shall include a clinical interview with a
       mental health professional and a recommendation concerning drug abuse treatment for
       the offender; and
               (2) a criminal risk-need assessment. The criminal risk-need assessment shall
       assign a high or low risk status to the offender.
               "(c) If the offender is assigned a high risk status as determined by the drug abuse
       assessment performed pursuant to subsection (b)(1) and a moderate or high risk status as
       determined by the criminal risk-need assessment performed pursuant to subsection (b)(2),
       the sentencing court shall commit the offender to treatment in a drug abuse treatment
       program until the court determines the offender is suitable for discharge by the court. The
       term of treatment shall not exceed 18 months. The court may extend the term of
       probation, pursuant to subsection (c)(3) of K.S.A. 2014 Supp. 21-6608, and amendments
       thereto. The term of treatment may not exceed the term of probation."


       In summary, the statute provides that an offender should receive a drug abuse
assessment and a criminal risk-need assessment as part of his or her presentence
investigation unless a court specifically orders otherwise. If the offender is assigned a

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high risk status by the drug abuse assessment and either a moderate or high risk status by
the criminal risk-need assessment, then "the sentencing court shall commit the offender
to treatment in a drug abuse treatment program until the court determines the offender is
suitable for discharge by the court," but in no case longer than 18 months. (Emphasis
added.) K.S.A. 2014 Supp. 21-6824(c)


       This mandatory statutory language is at odds with K.S.A. 2014 Supp. 21-6805(d),
which states in part: "If an offense is classified in grid blocks 4-E, 4-F, 4-G, 4-H, 4-I, 5-
C or 5-D, the court may impose an optional nonprison sentence as provided in subsection
(q) of K.S.A. 2014 Supp. 21-6804, and amendments thereto." K.S.A. 2014 Supp. 21-
6804(q) requires a court to make the following findings on the record before imposing a
nonprison sanction:


               "(1) An appropriate treatment program exists which is likely to be more effective
       than the presumptive prison term in reducing the risk of offender recidivism; and
               "(2) the recommended treatment program is available and the offender can be
       admitted to such program within a reasonable period of time; or
               "(3) the nonprison sanction will serve community safety interests by promoting
       offender reformation."


       The most fundamental rule of statutory interpretation is that the intent of the
legislature governs if that intent can be ascertained. This court must first attempt to
ascertain legislative intent by reading the language of the statute and giving common
words their ordinary meanings. When a statute is plain and unambiguous, this court does
not speculate as to the legislative intent behind it and will not read into the statute
something not readily found in it. Cady v. Schroll, 298 Kan. 731, 738-39, 317 P.3d 90
(2014). With any perceived ambiguity, this court must determine if it is possible to
interpret the provisions of the various statutes in play in a way that renders them
compatible, not contradictory. State v. Van Hoet, 277 Kan. 815, Syl. ¶ 2, 89 P.3d 606
(2004). Here, when giving common words their ordinary meanings, there does appear to

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be an ambiguity in the statutes. K.S.A. 2014 Supp. 21-6805(d) establishes a discretionary
nonprison sanction for grid box 5-C, while K.S.A. 2014 Supp. 21-6824(c) states that if
certain conditions are met, the sentencing court "shall" commit an offender falling into
grid box 5-C to drug treatment.


       There is no way for this court to reconcile the conflicting language of these
sentencing statutes. If a sentencing court is required to commit an offender to treatment in
a drug abuse program, there is no discretion. If a sentencing court is allowed discretion
on the issue, there is no requirement. It should be noted that we have looked at the
entirety of these statutes in an attempt to reconcile them and give effect to all of their
provisions. But what this court found in the text actually cuts against the position of the
State. There is evidence in K.S.A. 2014 Supp. 21-6824 that the legislature knew how to
retain the effect of existing sentencing provisions, if it had chosen to do so. Pursuant to
K.S.A. 2014 Supp. 21-6824(e), offenders in grid-box 5-A or 5-B are "subject to the
departure sentencing statutes of the revised Kansas sentencing guidelines act." The fact
the legislature did not see fit to craft a similar provision for offenders in grid-box 5-C is
an indication the legislature meant the mandatory provisions of K.S.A. 2014 Supp. 21-
6824 to take effect.


       The State argues that no ambiguity exists between K.S.A. 2014 Supp. 21-6804,
K.S.A. 2014 Supp. 21-6805, and K.S.A. 2014 Supp. 21-6824. Yet, it incongruously
acknowledges that the statutes "overlap." The State also argues that "K.S.A. 21-6804(q)
does not explicitly reference [K.S.A. 2014 Supp. 21-6824] because it also applies to
crimes other than drug possession crimes." In other words, it acknowledges that K.S.A.
21-6824 is a more specific statute than K.S.A. 2014 Supp. 21-6804. A specific statute
controls over a general statute. See Sierra Club v. Moser, 298 Kan. 22, 54, 310 P.3d 360
(2013). Therefore, for offenders that meet the criteria outlined in K.S.A. 2014 Supp. 21-
6824, that statute controls their sentence.


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       The State also argues that construing K.S.A. 2014 Supp. 21-6824 to require a
sentencing court to commit an offender to drug treatment creates "nonsensical results."
Even when statutory language is clear, this court must construe statutes to avoid
unreasonable or absurd results. Northern Natural Gas Co. v. ONEOK Field Services Co.,
296 Kan. 906, 918, 296 P.3d 1106, cert. denied ___U.S.___, 134 S. Ct. 162 (2013). The
State argues that "[i]t does not make sense that a judge has discretion to order the
assessment, but once ordered, the judge loses discretion on probation." It cites no
authority supporting its apparent argument that a district judge must have discretion at
every stage of a defendant's sentencing. In fact, our Supreme Court has stated that "[t]he
sentencing of a defendant is strictly controlled by statute." State v. Guder, 293 Kan. 763,
Syl. ¶ 1, 267 P.3d 751 (2012). There is nothing inherently absurd or unreasonable about
requiring a district court to impose a term of probation after it has already chosen to allow
the defendant to be subjected to assessments meant to gauge his amenability to drug
treatment.


       The State also argues that it would be nonsensical for a sentencing statute to
mandate drug treatment in cases where an individual's drug abuse and criminal risks are
elevated, yet allow a district court to impose a prison sentence on a low risk offender.
There is nothing absurd or unreasonable about targeting a certain population for drug
treatment. Further, a recent article in the University of Kansas Law Review cited research
indicating that drug courts in other jurisdictions tend to be most effective for high risk,
high need drug offenders. Comment, A Better Way: Rethinking SB 123 Probationary
Drug Treatment in Kansas, 62 U. Kan. L. Rev. 1365, 1376 (2014). This is one plausible
reason to target high risk offenders in Kansas. It is not our place to question the wisdom
of legislative policy in the process of interpreting statutes; we are duty bound to operate
within the framework of the legislature's words.


       Finally, since the legislature has permitted the existence of conflicting statutory
provisions, the rule of lenity must be considered. When there is ambiguity between

                                              8
statutory provisions imposing a penalty for a crime, it should be resolved in a defendant's
favor. State v. Horn, 288 Kan. 690, Syl. ¶ 3, 206 P.3d 526 (2009). As with the other
canons of statutory interpretation, the rule of lenity points us toward resolving the
conflicting provisions in favor of Swazey.


The need for factual findings regarding the raw LSI-R score on remand


       In this case, Swazey completed a drug abuse assessment referred to as a SASSI. It
indicated that Swazey had a "high probability of having a substance dependence
disorder." Although this finding does not directly correspond with the statutory term
"high risk," Swazey's results appear to qualify him for treatment under K.S.A. 2014 Supp.
21-6824(c). Swazey also completed a criminal risk-need assessment called the Level of
Service Inventory—Revised (LSI-R). The report, however, did not assign a risk
classification to Swazey under this test. Rather, it provided a numerical score of 35 and
stated that his supervision level was "ISL I." There is nothing in the record that explains
how Swazey's score of 35 should be interpreted or how a person's supervision level
correlates with risk assessments. Further, there is no statute or regulation that could assist
in interpreting the raw score from Swazey's LSI-R.


       In sum, the record is devoid of any evidence establishing that Swazey was
assigned a moderate or high risk status by the LSI-R. The district court did not make any
explicit findings on that point either. If Swazey's LSI-R score placed him in the moderate
or high risk category, then he was entitled to mandatory drug treatment and probation
rather than the prison sentence he received. Given that the district court did not consider
the mandatory provisions of K.S.A. 2014 Supp. 21-6824 at time of sentencing, we find
Swazey's sentence was illegally imposed. Accordingly, we vacate the sentence and
remand for additional findings and resentencing in accordance with this opinion.


       Sentence vacated; remanded with directions.

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