1 IN THE SUPREME COURT OF THE STATE OF KANSAS

N o
. 1 12 , 316
S TATE OF K ANSAS , Appel lee ,

v . E BONY N GUYEN , Appell ant

.

SYLLABUS BY THE COUR T

1. I nterpretation of the revised Kansas S entencing Guidelines Act , K.S.A. 2015 Supp. 21

- 6801 et seq ., is a question of law subject to unlimited review

.

2. K.S.A. 2015 Supp. 21

- 6806(c) does not give district courts discretion to depart from a life sentence for felony murder.

3

. In this case, t he district court did not err in denying the defendant ' s motion for a downward durational departure from a sentence of life imprisonment for a felony

- murder conviction.

Appeal from Sedgwick District C ourt; J OSEPH B RIBIESCA , judge

. Opinion filed May 20 , 20 1 6

. Affirmed.

Joanna Labastida , of Kansas Appellate Defender Office , argued the ca u se and was on the brief for appell ant

.2

Boyd K. Isherwood , assistant district attorney , argued the ca u se, and Mark Bennett , district attorney, and Derek Schmidt , attorney general, w ere with him on the brief for appell ee
. The opinion of the court was delivered by

N USS , C.J.: Ebony R. Nguyen appeals t he district court ' s deni al of her motion for a downward durational departure of her life sentence for felony murder. Because the district court had no discretion to depart, we reject Nguyen ' s arguments and affirm.

F ACTS AND P ROCEDURAL H ISTORY The facts are undisputed. Nguyen unwittingly received counterfeit money from Jordan Turner in exchange for her marijuana

. Upon discovering the deception and with the assistance of three others, Nguyen retaliated by luring Turner to a secluded location where he was shot and killed. With kidnapping serving as the underlying felony, Nguyen pled no contest to one count of felony murder under K.S.A. 2012 Supp. 21

- 5402(a)(2)

.

Before Nguyen was sentenc ed , she filed a motion for durational departure from a life sentence and s ought a sanction of between 147 to 165 months in prison

. At the hearing on the motion the district court stated it had no discretion to depart from the life sentence but , if so, it w ould not have granted departure :

" Well, I ' ll say for the record that in my opinion, the Court doesn ' t have discretion. This is an off

- grid offense, and it calls for a life sentence.

" Now, on appeal, if the appellate court were to disagree with that, my position, for purposes of the record, is that I would be unable to find substantial and compelling reasons to depart. Miss Nguyen was the driving force behind the shooting in this case, and under those circumstances, it would be wholly inappropriate for the Court to depart,3

so if the Court did have the discretion to consider the motion to depart, the Court would deny the motion. "
Accordingly, t he court denied Nguyen ' s motion and imposed a life sentence with parole eligibility after 20 years. See K.S.A. 2015 Supp. 22

- 3717. Nguyen timely appealed her sentence.
Our jurisdiction is proper under K.S.A. 2015 Supp. 22

- 3601(b)(3), (4) (maximum sentence of life imprisonment imposed for an off

- gr id crime).
More facts will be added as necessary to the analysis.

A NALYSIS

Issue: The district court did not err in concluding that K.S.A. 2015 Supp. 21

- 6806(c) does not a uthorize a district court to depart from a life sentence for felony murder.
Nguyen argues that because K.S.A. 2015 Supp. 21

- 6806(c) is silent on durational departures for off

- grid crimes , sentencing courts have discretion to grant them

— at least for felony murder. She specifically contends this court implicitly acknowledged such di scretion to depart from a life sentence for felony murder in State v. Gleason , 277 Kan. 624, 88 P.3d 218 (2004). The State basically counters that the statute ' s language reveals the intent of the legislature is to prohibit durational departures from senten ces for off

- grid crimes like felony murder.

Nguyen further argues that once we have agreed the district court had departure discretion, several factors warrant the court ' s exercise of that discretion to reduce her sentence : her lack of criminal history, her limited role in the murder, and her age and4

lack of maturity. But because we reject Nguyen ' s first argument, we do not reach her second one.
Standard of review

Whether the district court has discretion to grant a durational departure from a felony

- murder life sentence requires interpretation of the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2015 Supp. 21

- 6801 et seq ., a question of law subject to unlimited review. State v. Luarks , 302 Kan. 972, 976, 360 P.3d 418 (2015) (citing State v. Keel , 302 Kan. 560, 571, 357 P.3d 251 [2015]).
In exercising our unlimited review, we acknowledge that " ' [ t ] he fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. ' " Neighbor v. Westar Energy, Inc. , 301 Kan. 916, 918, 349 P.3d 469 (2015). A statute ' s language is our paramount consideration because " ' " the best and only safe rule for ascertaining the intention of the makers of any written law is to abide by the language they have used. " ' " State v. Looney , 299 Kan. 903, 906 , 327 P.3d 425 (2014) (citing Gannon v. State , 298 Kan. 1107, 1143, 319 P.3d 1196 [2014] [quoting Wright v. Noell , 16 Kan. 601, 607, 1876 WL 1081 (1876)]). " When statutory language is plain and unambiguous, there is no need to resort to statutory construction. An appellate court merely interprets the language as it appears; it is not free to speculate and cannot read into the statute language not readily found there. " State ex rel. Schmidt v. City of Wichita , 303 Kan. 650, 659 , 367 P.3d 282 (2016).
When legislative intent cannot be derived from the plain language of the statute, this court may look to legislative history or employ other methods of statutory

co nstruction. State v. Holt , 298 Kan. 469, 474 , 313 P.3d 826 (2013).5

Discussion
We start our analysis by acknowledging that K.S.A. 2015 Supp. 21

- 6806(c) establishes the sentencing for certain off

- grid crimes, including felony murder under K.S.A. 2012 Supp. 21

- 5402(a)(2). The sentencing statute provides:

" Violations of K.S.A. 2015 Supp. 21

- 5401, 21

- 5402 , 21

- 5421, 21

- 5422 and 21

- 5901, and amendments thereto, are off

- grid crimes for the purpose of sentencing . Except as otherwise provided by K.S.A. 2015 Supp. 21

- 6617, 21

- 6618, 21

- 6619, 21

- 6622, 21

- 6624, 21

- 6625, 21

- 6628, and 21

- 6629, and amendments thereto, the sentence shall be imprisonment for life and shall not be subject to statuto ry provisions for suspended sentence, community service or probation. " (Emphasis added.) K.S.A. 2015 Supp. 21

- 6806(c).

W e next note that the exceptions listed in K.S.A. 2015 Supp. 21

- 6806(c)

— K.S.A. 2015 Supp. 21

- 6617, 21

- 6618, 21

- 6619, 21

- 6622, 21

- 6624, 21

- 6625 , 21

- 6628 and 21

- 66 29

— do not provide any exception s to a life sentence for felony murder. These statutes primarily provide a sentencing scheme for capital murder.

Nguyen argues this court essentially interpreted this language in a predecessor statu te

— K.S.A. 21

- 4706(c)

— to answer this departure question in State v. Gleason , 277 Kan. 624. There, the district court denied the defendant ' s request for a durational departure on his conviction of felony murder and sentenced him to life imprisonment with no possibility of parole for 20 years

. We held that the defendant w as not entitled to a reduced sentence despite the lighter sentences his codefendants received as part of their plea bargains in which they pled guilty to less serious offenses . 277 Kan. at 656 . Nguyen argues that by reviewing the issue of departure from a life sentence in Gleason , this court implicitly acknowledged the district court had discretion to consider a departure.6

But Nguyen ' s reliance on Gleason is misplaced. T he issue before this co urt concerned whether the district court was required to compare defendant ' s sentence to the lesser sentences of his codefendants , not whether the sentencing statute allowed for durational departure . 277 Kan. at 656. So , w e reject Nguyen ' s argument that in Gleason

we implicitly acknowledged a district court ' s discretion to depart from a life sentence for felony murder.

Moreover, since Gleason we twice have expressly stated that the life sentence for felony murder is mandatory. Four years after Gleason we stated : " [T]he district court imposed a mandatory life sentence for the felony murder " and declared : " The sentence imposed for [the defendant ' s] felony murder, a mandatory life sentence, conforms to the statutory provisions. " (Emphasis a dded.) State v. Heath , 285 Kan. 1018, 1019, 179 P.3d 403 (2008). In Heath w e cited the previous, substantially similar felony

- murder sentencing statute in effect at the time , K.S.A. 21

- 4706(c) , which provided in relevant part : " Violations of K.S.A. 21

- 340 1 [(b) is felony murder] . . . are off

- grid crimes for the purpose of sentencing. .

. . [ T ] he sentence shall be imprisonment for life and shall not be subject to statutory provisions for suspended sentence, community service or probation

. " (Emphasis added.)
Six years after Heath we similarly pronounced in State v. Brown , 300 Kan. 542, 56 2

- 63 , 331 P.3d 781 (2014):

" A person convicted of felony murder is subject to a mandatory sentence of life imprisonment. See K.S.A. 21

- 4706(c). A person serving a life sentence for a felony murder committed after July 1, 1999, becomes parole eligible after 20 years of confinement. K.S.A. 22

- 3717(b)(2). " (Emphasis added.)7

These declarations are consistent with the plain language of K.S.A. 2015 Su pp. 21

- 6806(c)

— and its predecessor K.S.A. 21

- 4706(c)

— which provides that a sentence for felony murder " shall be imprisonment for life

. " (Emphasis added.) See also State v. Brown , 303 Kan. 995, 1006 , ___ P.3d ___, ( March 11, 2016) (describing K.S.A. 2014 Supp. 21

- 6806[c] as an example of " mandatory life sentences assigned by the legislature for off

- grid crimes " ).
Despite the foregoing, in none of these decisions did we expressly analyze this particular statutory phrase

— " the sentenc e shall be imprisonment for life "

— with the language that immediately follows it: " a nd shall not be subject to statutory provisions for suspended sentence, community service or probation

. " K.S.A. 2015 Supp. 21

- 6806(c)

. Not surprisingly, Nguyen and the Stat e differ on the meaning and possible significance of this language and whether it introduces ambigu ity in to the statute

.
Nguyen argues that by listing " suspended sentence, community service or probation " the legislature merely prohibited the m and any similar unlisted dispositional departures but did not prohibit the durational departure she requested. The State responds this language shows that the intent of the legislature was to disallow any departures.

To assist our analysis, we o bserve tha t after Nguyen committed her crime in March 2013, the legislature added language to another statute to specifically govern felony

- murder sentenc es . Although th e amendment to the statute applies to felony murders committed after July 1, 2014, it is of guida nce in determining the legislative intent in K.S.A. 21

- 6806(c)

. Cf

. Brown , 303 Kan. at 1006 (court does not interpret statutes in isolation but considers provisions of an act in par i materia with view to reconciling, bringing provisions into workable harmony) (citing State v. Hobbs , 301 Kan. 20 3, 210

- 11, 340 P.3d 1179 [2015])

.8

The amendment to that statute, K.S.A. 2015 Supp. 21

- 6620 , provides in relevant part :

" [A] defendant convicted of murder in the first degree as described in subsection (a)(2) [f elony murder] of K.S.A. 2015 Supp. 21

- 5402, and amendments thereto, shall be sentenced to imprisonment for life and shall not be eligible for probation or suspension , modification or reduction of sentence. In addition, the defendant shall not be eligible f or parole prior to serving 25 years ' imprisonment, and such 25 years ' imprisonment shall not be reduced by the application of good time credits. No other sentence shall be permitted

. " (Emphasis added.) K.S.A. 201 5 Supp. 21

- 6620(b)(1).

When , as here, langu age has been added to a n existing statute , the issue often becomes whether the new language is meant to constitute substantive legislative change s or simply to codify prior caselaw, e.g. , to clarify. See Stueckemann v. City of Basehor , 301 Kan. 718, 745, 348 P.3d 526 (2015) (distinguishing substantive legislative changes from mere codification of prior caselaw) ; s ee also Brennan v. Kansas Ins urance Guar anty Ass ' n , 293 Kan. 446, 458, 264 P.3d 102 (2011) ( " When an original statute is ambiguous, the legislati ve purpose may be to clarify the statute ' s ambiguities, not to change the law. " ); Estate of Soupene v. Lignitz , 265 Kan. 217, 222, 960 P.2d 205 (1998) ( amendment which in effect construes and clarifies a prior statute must be accepted as the legislative declaration of the meaning of the original act).

Faced with our decisions in Heath in 2008 and Brown in 2014, the legislature could have chosen to change this caselaw . In other words, it could have chosen to make substantive changes in K.S.A. 2015 Supp. 2 1

- 6806 and clearly establish that the life sentence for felony murder was not mandatory

— i.e. , d urational departures were permitted

. But the legislature did not do so. See H all v. Dillon Companies, Inc. , 286 Kan. 777, 785, 189 P.3d 508 (2008) (when legislat ure does not modify statute to avoid a standing judicial construction of that statute, the legislature is presumed to agree wit h that9

judicial construction). Instead, it chose to address the subject of felony

- murder sentences in K.S.A. 2015 Supp. 21

- 6620, and the statute ' s amended language certainly cannot be said to override Heath and Brown . The amendment provides that defendant " shall not be eligible for

. . . modification or reduction of sentence " and " the defendant shall not be eligible for p arole prior to serving 25 years ' imprisonment, and such 25 years ' imprisonment shall not be reduced by the application of good time credits. No other sentence shall be permitted

. " K.S.A. 2015 Supp. 21

- 6620(b)(1).
Indeed, the legislature chose the opposite approach t o substantive change

. By including disqualifying language far beyond the concept s of probation and suspension in 21

- 6620 , the legislature essentially only codifie d the caselaw. We therefore conclude that the se additions are merely meant to clarify the legi slative intent: the mandatory sentence for felony murder is life imprisonment.

T he State makes additional arguments that we conclude support the holding that a life sentence is mandatory for felony murder, i.e. , no departures are permitted

. The State first notes that the general sentencing statute for on

- grid crimes, K.S.A. 2015 Supp. 21

- 6815, contains language specifically authoriz ing departures. Sub section (a) provides in rel evant part: " [T]he sentencing judge shall impose the presumptive sentence provided by the sentencing guidelines unless the judge finds substantial and compelling reasons to impose a departure sentence

. " (Emphasis added.) Subsections (c)(1) and (2) then provide the nonexclusive lists of mitigating and aggravating factors which may be considered by the judge in determining whether substantial and compelling reasons for a departure exist.

The State next observes that while mandatory life sentences for some types of off

grid crimes can nevertheless be eligible for departure , th eir empowering statutes are explicit in their departure authorization

. It points to the statute controlling Jessica ' s L aw10

sentencing, K.S.A. 2015 Supp. 21

- 6627, which provides for a mandatory minimum of imprisonment for certain offenders. Jessica ' s Law , l ike K.S.A. 2015 Supp. 21

- 6806(c), generally prohibits departures for its off

- grid crimes . A nd it specifically includes language echoing that of K.S.A. 201 5 Supp. 21

- 6620(b)(1):

" When a person is sentenced pursuant to subsection (a) or (b), such person shall be sentenced to a mandatory minimum term of imprisonment of not less than 25 years , 40 years or be sentenced as determined in subsection (a)(2) or subsection (b)(2), whichever is applicable, and shall not be eligible for probation or suspension, modi fication or reduction of sentence

. In addition, a person sentenced pursuant to this section shall not be eligible for parole prior to serving such mandatory term of imprisonment, and such imprisonment shall not be reduced by the application of good time cr edits. " (Emphasis added.) K.S.A. 2015 Supp. 21

- 6627(c).

But u nlike K.S.A. 2015 Supp. 21

- 6806(c), after establishing a m andatory minimum term of imprisonment (not less than 25 years), Jessica ' s L aw goes on to expressly authorize, and provide a procedure fo r , depart ing from th is mandatory sentence: " [T]he sentencing judge shall impose the mandatory minimum term of imprisonment provided by subsection (a), unless the judge finds substantial and compelling reasons, following a review of mitigating circumstance s, to impose a departure. " (Emphasis added.) K.S.A. 2015 Supp. 21

- 6627(d)(1); see also State v. Spencer , 291 Kan. 796, 803, 24 8 P.3d 256 (2011).
Building on the State ' s argument, we also doubt that the legislature intended for the crimes it identified in the first sentence of K.S.A. 2015 Supp. 21

- 6806 (c)

— 21

- 5401 (capital murder); 21

- 5402 (first

- degree murder); 21

- 5421 (terrorism); 21

- 5422 (illegal use of weapons of mass destruction); and 21

- 5 901 (treason)

— to be eligible for a durational depar ture from a life sentence

. Our skepticism is particularly valid when the legislature has failed to provide any guidance to the sentencing court on when and how to depart11

from these most serious crimes

. Co mpare K.S.A. 2015 Supp. 21

- 6627(d)(1) (Jessica ' s L aw sentencing statute provides guidance on how and when to depart ) and 21

- 6815 (general departure statute for presumptive sentences provides guidance on how and when to depart ). These two statutes further demonstrate that had the legislature intended to allo w departures f

rom a mandatory life sentence for felony murder, it clearly knew how to enact such provisions

. Accordingly, we hold that by failing to provide an exception for felony murder, the legislature intended to prevent departures from the mandatory l ife sentence. See State v. Looney , 299 Kan. at 906 ( The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. )

.

A s a result, we hold that K.S.A. 2015 Supp. 21

- 6806(c) does not give district courts discretion to depart from a life sentence for felony murder. Given this holding, we need not consider the merits of Nguyen ' s motion for downward durational departure.

The decision of the district court is a ffirmed.