State v. Urban (Supreme Court)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 98,856


STATE OF KANSAS,
Appellant,

v.

KRISTI MARIE URBAN,
Appellee.


SYLLABUS BY THE COURT



1.
Interpretation of a statute raises a question of law over which this court has
unlimited review. The most fundamental rule is that the intent of the legislature governs
if that intent can be ascertained. An appellate court must first attempt to ascertain
legislative intent through the statutory language enacted, giving common words their
ordinary meanings. When a statute is plain and unambiguous, an appellate court does not
speculate as to the legislative intent behind it and will not read into the statute something
not readily found in it. Where there is no ambiguity, the court need not resort to statutory
construction. Only if the statute's language or text is unclear or ambiguous does the court
use canons of construction or legislative history or other background considerations to
construe the legislature's intent. A court cannot delete vital provisions or supply vital
omissions in a statute. No 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 that the legislature alone can correct.


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2.
Under the second sentence of K.S.A. 21-3809(b)(1), a defendant on a personal
recognizance bond conditioned on residence in a community corrections facility is under
a "constraint incidental to release on bail." If such a defendant leaves or is absent from
the facility without authorization, an aggravated escape charge cannot be pursued because
the statutory definition of "custody" cannot be met.

Review of the judgment of the Court of Appeals in 40 Kan. App. 2d 517, 193 P.3d 515 (2008).
Appeal from Johnson District Court; THOMAS H. BORNHOLDT, judge. Opinion filed September 24, 2010.
Judgment of the Court of Appeals reversing and remanding the district court is reversed. Judgment of the
district court is affirmed.

Steven J. Obermeier, assistant district attorney, argued the cause, and Phill Kline, district
attorney, and Paul J. Morrison, attorney general, were with him on the brief for appellant.

Janine Cox, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellee.

The opinion of the court was delivered by

BEIER, J.: Defendant Kristi Marie Urban petitioned this court for review of a Court
of Appeals decision reversing a district court dismissal of this aggravated escape
prosecution. Urban argues that the appellate panel should have followed the K.S.A. 21-
3809(b)(1) interpretation in State v. Hampton, No. 91,092, a different panel's earlier
unpublished opinion. The State's principal argument is that an unpublished opinion
should not be treated as controlling precedent.

FACTUAL AND PROCEDURAL BACKGROUND

Urban was charged in Case No. 06CR2179 with several counts of drug possession
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and driving while suspended. Pending trial or plea, the district judge granted her a
personal recognizance (PR) bond on the condition that she reside at the Johnson County
Residential Center (Center). The judge specifically imposed the residential condition on
the PR bond after Urban twice failed to appear as ordered in the case. Urban posted bond
on December 28, 2006, and was transferred to the Center. Thereafter, Urban reached a
plea agreement with the State; the parties agree she entered her guilty plea on January 2,
2007, and her sentencing was set for February 28, 2007.

Before that date arrived, on February 16, 2007, Urban left the Center on a
temporary pass and failed to return, remaining missing until March 26, 2007. As a result,
she again failed to appear as ordered in Case No. 06CR217. The State brought this case
on February 23, 2007, charging Urban with aggravated escape from custody under
K.S.A. 21-3810.

Urban was sentenced on Case No. 06CR2179 on April 19, 2007. She received 18
months' probation at the Center, with an underlying prison term of 15 months. She
received jail credit for her time already spent at the Center, less the time she had been
missing.

Urban moved to dismiss the aggravated escape charge on the theory that she was
not in custody, as that term is defined in K.S.A. 21-3809(b)(1), at the time she left the
Center on her temporary pass. She argued that her restraint at the Center was incidental to
her release on bond in Case No. 06CR2179, and that release on bond was excluded from
the statutory definition of custody.

The district judge granted Urban's motion. He noted that, at the time of Urban's
plea, the court could have revoked Urban's pre-plea conditional bond and placed her at

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the Center to await sentencing. It did not. Consequently, he agreed with Urban that she
had not been in custody within the contemplation of K.S.A. 21-3809(b)(1) when she left
the Center on her temporary pass.

The Court of Appeals panel rejected this position. State v. Urban, 40 Kan. App. 2d
517, 193 P.3d 515 (2008). We granted review under K.S.A. 20-3018(b).

Analysis

A. Standard of Review

Interpretation of a statute raises a question of law over which this court has
unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). The most
fundamental rule is that the intent of the legislature governs if that intent can be
ascertained. Arnett, 290 Kan. at 47. An appellate court must first attempt to ascertain
legislative intent through the statutory language enacted, giving common words their
ordinary meanings. State v. Raschke, 289 Kan. 911, 914, 219 P.3d 481 (2009). When a
statute is plain and unambiguous, an appellate court does not speculate as to the
legislative intent behind it and will not read into the statute something not readily found
in it. Where there is no ambiguity, the court need not resort to statutory construction.
Only if the statute's language or text is unclear or ambiguous does the court use canons of
construction or legislative history or other background considerations to construe the
legislature's intent. State v. Trautloff, 289 Kan. 793, 796, 217 P.3d 15 (2009). This court
cannot delete vital provisions or supply vital omissions in a statute. No 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 that the legislature alone can correct.
See State v. Johnson, 289 Kan. 870, 879, 218 P.3d 46 (2009).

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B. Statute at Issue

The controlling statute is K.S.A. 21-3809(b)(1), which contains pertinent
descriptions of what "custody" is and what it is not, when that term is used to define the
crimes of escape, aggravated escape, and aiding escape. The statute, in the form it existed
when Urban was charged through today, provides:

"'Custody' means . . . detention in a facility for holding persons charged with or convicted
of crimes . . .; detention in . . . [another] facility pursuant to court order, imposed as a
specific condition of probation or parole or imposed as a specific condition of assignment
to a community correctional services program . . . . 'Custody' does not include general
supervision of a person on probation or parole or constraint incidental to release on bail."

C. The Court of Appeals Decision in this Case

After reviewing the statutory language, the Court of Appeals panel held that
Urban's circumstances fit two of the three scenarios described in the first sentence quoted
above: She was in detention in a facility for holding persons convicted of crimes, and she
was in detention in a facility pursuant to court order imposed as a specific condition of
assignment to a community correctional services program. In contrast, in the panel's
view, Urban's situation did not fit either of the scenarios described in the second sentence
of K.S.A. 21-3809(b)(1): Her detention was not general supervision of a person on
probation or parole, and it was not a constraint incidental to release on bail. Urban, 40
Kan. App. 2d at 521-23. Thus Urban was in "custody" for purposes of the aggravated
escape charge.

The Court of Appeals panel in this case relied in part on our 1984 decision in State

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v. Garrett, 235 Kan. 768, 684 P.2d 413 (1984). Defendant David D. Garrett had been
convicted of forgery and was initially given a 3-year suspended sentence. When he failed
to comply with the terms of his suspended sentence, the district court at first set aside the
sentence and committed him to 1 to 10 years' imprisonment. Upon a defense motion to
modify, the judge placed Garrett on probation for 3 years, on the condition that he reside
at a community corrections facility. Garrett failed to return as scheduled when permitted
to leave the facility, and the State charged him with escape.

At the time Garrett was charged with escape, the first sentence of K.S.A. 21-
3809(b)(1) was similar but not identical to its current form. The statute then provided that
"'[c]ustody' means . . . detention in a facility for holding persons charged with or
convicted of crimes, . . . detention in . . . [another] facility pursuant to court order or
imposed as a specific condition of probation or parole . . . ." (Emphasis added.) Garrett,
235 Kan. at 771 (quoting K.S.A. 1983 Supp. 21-3809(b)(1); see also L. 1986, ch. 123,
sec. 1 (showing timing, content of statutory amendment). Under the plain language of this
earlier version of the statute, and particularly the disjunctive "or" emphasized above, the
definition of "custody" was met if a defendant had been detained pursuant to a court order
of any kind. It was not necessary, as it was when Urban was charged with aggravated
escape, and as it is now, that a court order be "imposed as a specific condition of
probation or parole or imposed as a specific condition of assignment to a community
correctional services program." See K.S.A. 21-3809(b)(1).

In the Garrett decision, the first legal issue we addressed was whether Garrett's
residence in the community corrections center qualified under one or more of the
scenarios set out in the first sentence of K.S.A. 1983 Supp. 21-3809(b)(1). We held that
Garrett was in custody because "[h]e was being detained in a facility for holding persons
convicted of crimes and was also being detained in a facility pursuant to court order."
Garrett, 235 Kan. at 774. We did not address whether either of the exceptions to
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"custody" in the second sentence of K.S.A. 1983 Supp. 21-3809(b)(1) applied, an issue
apparently not raised. See Garrett, 235 Kan. at 774-76.

The Court of Appeals panel in this case concluded that Urban—who, like Garrett,
had already been convicted but, unlike Garrett, had not been sentenced when she left
community corrections—was covered two ways by the first sentence of K.S.A. 21-
3809(b)(1): She was detained in a facility for persons convicted of crimes, and she was
detained in a facility pursuant to court order imposed as a specific condition of
assignment to a community correctional services program. Urban, 40 Kan. App. 2d at
518-19. Because of the amendment to the statute between the time Garrett was decided
and the time Urban was charged, Garrett supports the former holding but not the latter.
We therefore hold, when only the first sentence of K.S.A. 21-3809(b)(1) is considered,
Urban's situation qualifies for the label of custody because she was in "detention in a
facility for holding persons . . . convicted of crimes."

The Court of Appeals panel in this case correctly discerned that our analysis must
now move to the second sentence of K.S.A. 21-3809(b)(1). See Urban, 40 Kan. App. 2d
at 520. Its two exceptions to the definition of custody in the first sentence have been
identical since 1982. Compare L. 1982, ch. 134, sec. 1 with K.S.A. 21-3809(b)(1). And
the clear import of the two sentences, when read together, is that applicability of one or
both of the exceptions in the second sentence trumps applicability of one or more of the
custody scenarios outlined in the first sentence.

The first exception is easily disposed of. It would apply only if Urban were under
general supervision on probation or parole. As she had only been convicted and not
sentenced, neither probation nor parole were yet in play.


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The second exception is the sticking point. Urban asserts that this exception for
persons subject to "constraint incidental to release on bail" applies to her because her
residence at the Center was a condition of her PR bond, instituted pending trial or plea
and never revoked or adjusted at her plea hearing or otherwise. We do not have a
transcript of the plea hearing in Case No. 06CR2179 in the record on appeal in this case,
but the State has not disputed the district judge's mention that Urban's bond was not
revoked or, apparently, otherwise explicitly changed when she pleaded guilty in the drug
case.

The Court of Appeals panel rested its conclusion that the second exception did not
apply to Urban on several grounds. It invoked two canons of statutory construction,
ejusdem generis and noscitur a sociis, to say that the two exceptions should be
"interpreted" to make them equivalent in their relatively low impact on a defendant. It
also read the phrase "incidental to" to mean that any constraint referred to in the second
exception be minor, i.e., less restrictive than the residence at the community corrections
Center here. The panel noted that Urban had received jail credit for her time at the
Center, less the time she was missing. It also characterized exclusion of any condition
placed on bail or bond from the definition of custody in the first sentence of K.S.A. 21-
3809(b)(1) as an unreasonable "interpretation" of the statute. Urban, 40 Kan. App. 2d at
520-22.

We depart from the panel on its first ground because it requires us to exceed our
role when faced with a statute whose language is clear and unambiguous. As we have
often stated, it is not the place of a court to look beyond such language for evidence of
legislative intent. When a statute is plain, the court should not speculate as to the
legislative intent behind it and should not read into the statute something not readily
found in it. In this case, there was no need here to go beyond statutory interpretation to
statutory construction, employing canons, or searching for clues in legislative history or
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other background considerations. The legislature's intent in choosing the words it used in
the second exception in the second sentence of the statute is manifest. "Constraint" is a
broad term; it may be more intrusive than detention or less. Bail has a specific meaning,
but it includes a PR bond such as that posted by Urban. The "release" in the phrase
"release on bail" is release from jail; required residence in a community corrections
facility may not be total freedom, but it is still not jail.

We also disagree with the panel's second ground, the gloss it gives the phrase
"incidental to." Although it is true that "incidental to" has developed a modern usage
subtly differentiated from "incident to," both phrases imply that the preceding concept is
subordinate in some way to the succeeding concept. Compare Garner, Garner's Modern
American Usage 439 (2d ed. 2003) with Black's Law Dictionary 777 (8th ed. 2004). The
legislature's employment of "incidental" rather than "incident" does not necessarily
trivialize "constraint" in a cosmic sense. It does not make "constraint" irrelevant, as
"spectacle" does to "shopping" in Garner's exemplary sentence: "Inside a Niketown or
REI store in Seattle, shopping seems incidental to the spectacle . . . ." Garner at 439
(quoting Kugiya, What's in Store? Seattle Times, October 19, 1997, at 16). Rather, it
precisely conveys, just as "incident to" conveys, the relationship between "constraint" and
"release on bail." The relationship is dependence; the constraint arises out of the bail
context.

Third, we are unpersuaded that there is anything unreasonable about an
interpretation of the statutory language that makes every constraint incidental to release
on bail ineligible for the label of "custody" under K.S.A. 21-3809(b)(1). This was the
legislature's policy choice to make, and it made it. It is not so farfetched that we must
recoil or darn its socks. The exception to custody for "constraint incidental to release on
bail," in fact, is consistent with the overall legislative design that makes walking away

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from a community corrections facility while on bond a separate offense. See K.S.A. 21-
3814. If the legislature believes it has been misunderstood, we are confident that an
appropriate amendment of the statutory language will follow publication of this opinion.

Finally, we agree with Urban's counsel that the Court of Appeals' note about
Urban receiving jail credit for her time at the Center, less the time while she was missing,
is irrelevant. The propriety of awarding jail credit in such a situation is a matter for
another court on another day. The Court of Appeals did not appear to put great weight on
this fact here, much less reason backward from it to its result; we comment only to ensure
that our silence now is not misinterpreted in the future as approval.

D. The Significance of Hampton

The final section of the Court of Appeals decision in this case is reserved for its
discussion and dismissal of State v. Hampton, No. 91,092, an unpublished opinion filed
by another Court of Appeals panel on September 24, 2004.

In that case, defendant Andrew A. Hampton, who had been charged but not
convicted in a felony prosecution and who was on a $10,000 personal recognizance bond,
was released to a community corrections residential facility. When he left the facility and
failed to return, he was charged with and pleaded guilty to aggravated escape.

Five years later, Hampton argued that he should be permitted to withdraw his plea
because he had not been in the "custody" necessary to support the aggravated escape
charge. The Court of Appeals panel agreed with his argument on the factual impossibility
of an aggravated escape. See Hampton, slip op. at 16-17.

"Custody as defined in 21-3809(b)(1) does not include actions which are a part of general
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supervision of a person on parole or probation or constraint incidental to release on bail.
By this definition, it appears clear that the legislature did not intend to include walking
away from a community corrections residential center before conviction and while on
bond to be an aggravated escape from custody as opposed to bail jumping. The
legislature could have included such a walk away as escape or aggravated escape, but it
has not done so." Hampton, slip op. at 11.

The Court of Appeals panel in this case first pointed out a factual distinction
between Urban and Hampton, i.e., that Urban had been convicted while Hampton had
not; but it acknowledged that such a distinction was of no moment under the first
sentence of K.S.A. 21-3908(b)(1). It also said that it found Hampton less helpful than
Garrett, because it did not discuss the "court order" section of the first sentence of the
statute while Garrett did. Urban, 40 Kan. App. 2d at 522-23. As we have discussed in the
preceding section, Garrett focused on an earlier version of the statutory language on
detention pursuant to court order, and that makes its pronouncements on that language of
little use. Although the Court of Appeals panel also criticized Hampton's lack of
discussion of the meaning of "incidental to," Garrett also did not discuss this wording
choice, or, for that matter, anything related to the second sentence of K.S.A. 21-
3809(b)(1).

The main problem with the Court of Appeals panel's discussion of Hampton is that
it ignored the critical factual similarity between Urban and Hampton. Each was on felony
bond at the time of the charged escape. Unlike conviction status under the first sentence
of K.S.A. 21-3809(b)(1), the existence of each bond and the relationship between it and
the residential constraint placed on the defendant under the second sentence of K.S.A. 21-
3809(b)(1) has dispositive legal significance. Each defendant was subject to detention
that could qualify as "custody" under the first sentence of K.S.A. 21-3809(b)(1), but the
bond and the constraint incidental to it excluded each defendant's situation under the

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second sentence of the statute. As a result, neither Hampton nor Urban could be charged
with aggravated escape.

Finally, we must comment on the stare decisis value of Hampton.

The Court of Appeals panel was correct that it had the right to disagree with a
previous panel of the same court. See K.S.A. 20-3018(b) (Supreme Court may review
Court of Appeals decision when in conflict with another). And the State is correct that
unpublished decisions are generally afforded little precedential authority; indeed, they are
not to be cited to a court unless they are significant for issue or claim preclusion or for
law of the case or there is no published case on the same point of law. See Supreme Court
Rule 7.04(f)(2) (2009 Kan. Ct. R. Annot. 54). We are not compelled today, and the
district court was not compelled when it dismissed Urban's charge for aggravated escape,
to decide this case as we do because of the Hampton decision. Rather, our result is
demanded by the plain language of the governing statute. Hampton is merely persuasive
authority arising out of factually similar circumstances. We read it, as always, with
interest and respect; but we are not bound to follow it.

The Court of Appeals is reversed. The district court is affirmed.