ORDER
JACKSON KISER, Senior District Judge
In accordance with the written memorandum opinion entered this day, it is hereby
ORDERED
that plaintiff's complaint is DISMISSED without prejudice as frivolous, pursuant to 28 U.S.C. § 1915A(b)(1), all pending motions are DENIED as moot; and the action is STRICKEN from the active docket of the court.
The Clerk is directed to send copies of this order and the accompanying memorandum opinion to the plaintiff.
e authority to support this argument.
The rule of lenity is a canon of statutory construction commonly applied in the criminal law context. State v. Schoonover, 281 Kan. 453, 470, 133 P.3d 48 (2006). It has no application in this analysis. As we have noted, K.S.A. 2006 Supp. 21-3523 is clear and unambiguous as written. Although the district court perceived an ambiguity when the statute is applied to situations where the victim is believed to be younger than 14 years of age, the ambiguity does not arise because of ambiguity in the language; the provisions are clearly written and clearly overlap. The perceived ambiguity is whether the legislature really intended an overlap or wanted a clear segregation that did not leave any prosecutorial discretion. Nevertheless, courts need not resolve that question because "`[n]o matter what the legislature may have really intended to do, if it did not in fact do it, under any reasonable interpretation of the language used, the defect is one which the legislature alone can correct.' [Citation omitted.]" Kenyon v. Kansas Power Light Co., 254 Kan. 287, 293, 864 P.2d 1161 (1993). Here, regardless of whether the legislature meant to, it clearly created an overlap, and the only question presented is whether that overlap violates Sandberg's right to due process. The rule of lenity is not an appropriate tool for that analysis because the rule does not require a prosecutor to charge the least severe level in a hierarchy of included offenses. The rule of lenity provides Sandberg no relief.
We conclude, therefore, that the district court ultimately reached the correct conclusion that Sandberg could be sentenced to a severity level 1 person felony sentence, even though the district court used different grounds for reaching that conclusion. See State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008) (judgment of district court may be upheld on appeal despite its reliance on the wrong ground). Sandberg was appropriately sentenced to a severity level 1 person felony.
Affirmed.
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JOHNSON, J., dissenting:
I respectfully dissent. If we are going to continue to recognize the court-made identical offense doctrine in this state, it should apply here.
The majority quotes Campbell's recitation of the three circumstances where statutory provisions might have identical elements: "`(1) where one statute defines a lesser included offense of [another offense] and they carry different penalties . . .; (2) where the statutes overlap and carry different penalties . . .; (3) where the statutes are identical.'" State v. Campbell, 279 Kan. 1, 14, 106 P.3d 1129 (2005) (quoting 4 LaFave, Israel King, Criminal Procedure § 13.7(a), p. 95). The majority acknowledges that the provisions of K.S.A. 21-3523(a)(1) and (a)(2) fit within the second circumstance of overlapping provisions. However, because the legislature labeled K.S.A. 21-3523(a)(1) as a lesser degree of the crime defined in K.S.A. 21-3523(a)(2), the provisions also fall within the first circumstance of a lesser included offense. The majority opines that lesser included offenses were never intended to be covered by the identical offense doctrine; rather, the doctrine only applies where two separate statutes are involved.
If it is true that all lesser included offenses are not subject to the identical offense doctrine, regardless of whether they fit into another circumstance, then there would be nothing to prohibit a lesser included offense which is identical to the greater degree of the crime, i.e., the third circumstance of identical statutory provisions. Accordingly, the legislature could have made the age of the victim element in both K.S.A. 21-3523(a)(1) and (a)(2) to be a person younger than 16 years of age, so long as it made one of the crimes a lesser degree of the other by specifying a lesser penalty. Then, under the majority's rationale, the identical offense doctrine could not be utilized to prevent a prosecutor from arbitrarily selecting either punishment for a violation of the identical statutory provisions, unfettered by the rule of lenity or due process considerations.
As the majority notes, the original rationale for the identical offense doctrine was that "the decision as to which penalty to seek cannot be a matter of prosecutorial whimsy in charging." State v. Clements, 241 Kan. 77, 83, 734 P.2d 1096 (1987). Ironically, the majority justifies excluding from the doctrine those statutory provisions which the legislature has labeled as lesser included offenses based upon unfettered prosecutorial discretion. The majority notes that prosecutors are always free to ignore the facts and choose to prosecute a defendant for a lesser crime, i.e., exercise prosecutorial whimsy in charging. While the recognition that prosecutorial discretion permits whimsical decision-making in the real world might counsel against continuing the identical offense doctrine in this state, I do not view it as justifying the disparate treatment of overlapping provisions based upon where they are placed in the statute book.
Moreover, I would note a distinction in the majority's examples of prosecutorial discretion with respect to lesser included offenses. Those examples require the prosecutor to ignore a fact, e.g., that the robbery was committed with a deadly weapon or that the battery victim sustained great bodily harm. In those instances, the lesser included offenses are a subset of the greater crime because an additional fact must be added to the lesser included offense to satisfy the elements of the greater offense. Here, if Sandberg believed that the person he was enticing or soliciting was age 13, then he believed both that the victim was under the age of 14 years and that the victim was under the age of 16 years. In other words, the greater degree of the crime is a subset of the lesser included offense because persons under age 14 years are among those persons who are under age 16 years. The prosecutor did not have to ignore any fact in order to legitimately charge Sandberg under the elements of the lesser crime.
As noted by the majority, the rationale for the doctrine has evolved to include due process considerations. See State v. Thompson, 287 Kan. 238, 257, 200 P. 3d 22 (2009). Nevertheless, the majority contends that the overlapping provisions do not violate those due process considerations because they give appropriate notice of the potential penalties involved. In that regard, the opinion points out that Sandberg had notice at the plea hearing that he was charged with the severity level 1 version of the offense. However, in my view, the notice problem arises at the earlier stage, when the crime is being committed. "`[A] fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.'" Wright v. Federal Bureau of Prisons, 451 F.3d 1231, 1236 (10th Cir. 2006) (quoting United States v. Bass, 404 U.S. 336, 348, 30 L. Ed. 2d 488, 92 S. Ct. 515) (discussing the principle of lenity).
I would have required the statute to give more explicit warning as to the punishment which would be applicable to the proscribed conduct, especially given the legislature's demonstrated ability to clearly distinguish crime severity based upon the victim's age. See, e.g., K.S.A. 21-3504(a)(1) (unlawful to have sexual intercourse with a child "who is 14 or more years of age but less than 16 years of age"). Accordingly, I would reverse and remand for resentencing the offense as a severity level 3 person felony.