State v. ClarkState v. Clark
- The right to appeal derives from statute. Therefore, as a general rule, appellate courts may exercise jurisdiction only when authorized to do so by statute.
- Under the doctrine of stare decisis, points of law established by a court are generally followed by the same court and courts of lower rank in later cases in which the same legal issue is raised.
- This court endeavors to adhere to precedent unless clearly convinced a rule of law established in its earlier cases was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent.
- Consistent with State v. Scherzer, 254 Kan. 926, 929-30, 869 P.2d 729 (1994), appellate courts have jurisdiction under
K.S.A. 60-2101 andK.S.A. 2020 Supp. 22-3504 to hear the State‘s appeal of an illegal sentence. - The legality of a sentence under
K.S.A. 2020 Supp. 22-3504 is controlled by the law in effect at the time the sentence was pronounced. - In Kansas, the mandate rule is a statutory imperative that requires lower courts to follow the mandates issued by appellate courts.
- An intervening change in the law can create an exception to the law of the case doctrine—a rule created by common law. However, this exception does not apply to the statutorily derived mandate rule. So, while different panels of the Court of Appeals hearing successive appeals in the same case may, in exceptional circumstances, depart from the law of the case, under Kansas law no exceptional circumstances permit a lower court to circumvent the mandate of a higher court. This holds true even when a change in the law has occurred.
- The doctrine of constitutional avoidance is a rule of statutory construction. It imposes a duty on the court to construe a statute as constitutionally valid when it is faced with more than one reasonable interpretation. In other words, if a court can genuinely, reasonably, plausibly, or fairly interpret and construe statutory language consistent with legislative intent in a manner that also preserves it from impermissibly encroaching on constitutional limits, the court must do so.
Review of the judgment of the Court of Appeals in an unpublished opinion filed April 17, 2020. Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed May 14, 2021. Judgment of the Court of Appeals vacating the sentence and remanding the case to the district court is affirmed. Judgment of the district court is reversed and the case is remanded with directions.
Thomas R. Stanton, district attorney, argued the cause, and Keith E. Schroeder, former district attorney, and Derek Schmidt, attorney general, were on the brief for appellant.
Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellee.
WALL, J.: Sidney W. Clark was originally sentenced in 2005. Years later, he filed a motion to correct an illegal sentence, arguing his prior out-of-state conviction was incorrectly classified as a person offense for criminal history purposes. The district court denied the motion. On Clark‘s appeal from this ruling, the Court of Appeals reversed based on State v. Wetrich, 307 Kan. 552, Syl. ¶ 3, 412 P.3d 984 (2018), and remanded for resentencing with Clark‘s prior conviction classified as a nonperson offense. State v. Clark, No. 119,076, 2019 WL 1746772 (Kan. App. 2019) (unpublished opinion) (Clark I).
Before the district court resentenced Clark on remand, a series of legal developments called into question the holding in Clark I. Nevertheless, the district court concluded it was bound by the mandate of Clark I and resentenced Clark accordingly. This time, the State appealed, arguing Clark‘s 2019 sentence was illegal and Clark should have been resentenced based on the law in effect in 2005. The Court of Appeals agreed. State v. Clark, No. 121,789, 2020 WL 1903820, at *3 (Kan. App. 2020) (unpublished opinion) (Clark II). We granted Clark‘s petition for review, which challenged the jurisdictional and substantive basis of the ruling in Clark II.
This appeal requires us to decide whether Kansas appellate courts have jurisdiction to hear a State‘s appeal challenging the legality of a sentence. If so, we must also decide whether Clark‘s sentence is controlled by the law in effect at the time of his original sentence in 2005 or the law in effect at the time of his resentencing in 2019.
Adhering to the doctrine of stare decisis, we follow State v. Scherzer, 254 Kan. 926, 929-30, 869 P.2d 729 (1994), which held
FACTS AND PROCEDURAL BACKGROUND
In February 2005, Clark pled guilty to one count of aggravated criminal sodomy, a severity level 2 person felony, based on conduct that occurred in January 2004. At Clark‘s sentencing in June 2005, the district court determined his criminal history score was a B. This score was based in part on a 2000 Oklahoma conviction for placing bodily fluids on a government employee. The district court classified this conviction as a person felony and sentenced Clark to the aggravated term of 460 months in prison.
In 2017, Clark filed a pro se motion to correct an illegal sentence. He argued his Oklahoma conviction for placing bodily fluids on a government employee was not comparable to any Kansas offense. Clark identified the closest Kansas offense to be battery against a law enforcement officer, which criminalized intentional contact with another person when done in a rude, insulting, or angry manner. But Clark alleged his Oklahoma conviction stemmed from an incident in which he involuntarily spit on arresting officers after they used pepper spray on him and such accidental conduct would not have qualified as rude, insulting, or angry behavior
The district court denied Clark‘s motion. The court explained that for the purposes of determining an offender‘s criminal history score, the out-of-state offense and the Kansas offense being compared need not be “identical with identical elements.” Instead, the offenses need only be comparable. The district court concluded the Oklahoma offense of placing bodily fluids on a government employee was comparable to the Kansas offense of battery against a law enforcement officer. As a result, the district court ruled Clark‘s Oklahoma conviction was properly classified as a person felony.
The Court of Appeals reversed in Clark I. Applying Wetrich, the panel held the Oklahoma offense of placing bodily fluids on a government employee is not comparable to the Kansas offense of battery against a law enforcement officer because the elements of the Oklahoma offense are not identical to or narrower than the Kansas offense. Clark I, 2019 WL 1746772, at *2-5. Accordingly, the panel vacated Clark‘s sentence and remanded the case for resentencing with directions to recalculate Clark‘s criminal history score with his Oklahoma conviction classified as a nonperson felony. 2019 WL 1746772, at *6.
The State did not file a petition for review, and the Clark I mandate issued. On remand, a new presentence investigation (PSI) report classified Clark‘s Oklahoma conviction as a nonperson felony, lowering his criminal history score from B to C. Resentencing was scheduled for July 2019. At that hearing, the district court acknowledged that recent legal developments had cast doubt on whether Clark should be resentenced in accordance with Wetrich. The district court continued the hearing so the parties could address the recent caselaw developments. Both parties filed written memoranda addressing the appropriate law for resentencing.
At a hearing on August 16, 2019, the district court found Clark had a criminal history score of C and sentenced him to the aggravated term of 216 months. The State objected, arguing that intervening caselaw since Clark I compelled the district court to resentence Clark in accordance with the law in effect in 2005; otherwise, Clark‘s sentence would be illegal. However, the district court ruled that it lacked authority to depart from the appellate court‘s mandate to resentence Clark with a criminal history score of C.
The State appealed. And in Clark II, the panel held the district court erred because Clark‘s 2005 sentence was legal when pronounced and subsequent changes in the law could not render it illegal and subject to correction under
ANALYSIS
Kansas Appellate Courts Have Jurisdiction Over a State‘s Appeal Challenging the Legality of a Sentence
Clark argues the State‘s appeal should be dismissed for lack of jurisdiction. He contends that a party‘s right to appeal derives solely from statute, and there is no statutory basis for the State to appeal from a district court‘s ruling on a motion to correct an illegal sentence.
Standard of Review and Relevant Legal Framework
“Whether appellate jurisdiction exists is a question of law over which this court has unlimited review. To the extent the court‘s inquiry requires statutory interpretation,
In Kansas, “[a]ppellate jurisdiction is defined by statute; the right to appeal is neither a vested nor a constitutional right.” Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609, 244 P.3d 642 (2010). The limits of appellate jurisdiction are imposed by the Legislature. State v. Berreth, 294 Kan. 98, 110, 273 P.3d 752 (2012). Accordingly, ““[an] appellate court has jurisdiction to entertain a State‘s appeal only if it is taken within time limitations and in the manner prescribed by the applicable statutes.“” State v. Sales, 290 Kan. 130, 134, 224 P.3d 546 (2010). Therefore, as a general rule, appellate courts may exercise jurisdiction only when authorized to do so by statute.
Any analysis of an appellate court‘s jurisdiction begins with
In contrast,
“(b) Appeals to the court of appeals may be taken by the prosecution from cases before a district judge, or a district magistrate judge who is regularly admitted to practice law in Kansas, as a matter of right in the following cases, and no others:
(1) From an order dismissing a complaint, information or indictment;
(2) from an order arresting judgment;
(3) upon a question reserved by the prosecution; or
(4) upon an order granting a new trial in any case involving a class A or B felony or for crimes committed on or after July 1, 1993, in any case involving an off-grid crime.”
While subsection (b) specifically lists only four circumstances in which the State has the right to appeal,
Finally,
State‘s Jurisdictional Bases for Appeal
In its docketing statement, the State relies on three specific statutes as the jurisdictional bases for its appeal, including: (1)
That brings us to the State‘s third and final proposed statutory basis for jurisdiction,
In Scherzer, the district court sentenced the defendant to 90 days’ imprisonment but allowed the sentence to be served by house arrest. On appeal, our court issued a show cause order requesting the State to establish the jurisdictional basis for the appeal. The State claimed the district court‘s sentence failed to comply with statutory requirements, rendering it illegal. Scherzer held appellate jurisdiction was proper, reasoning:
“The State characterizes its appeal as whether the sentence imposed by the district court is illegal. This court has previously accepted an appeal by the State alleging an illegal sentence, albeit without explaining the jurisdictional authority for our review of the sentence imposed. See State v. Keeley, 236 Kan. 555, 694 P.2d 422 (1985). We note this court has general statutory jurisdiction to correct, modify, vacate, or reverse any act, order, or judgment of a district court in order to assure that any such act, order, or judgment is just, legal, and free of abuse.
K.S.A.1993 Supp. 60-2101(b) . The court also has specific statutory jurisdiction to correct an illegal sentence at any time.K.S.A. 22-3504 . We have jurisdiction to consider the State‘s appeal.” 254 Kan. at 929-30.
Ordinarily, Scherzer‘s holding alone would be sufficient to dispose of Clark‘s challenge and establish our jurisdiction over the State‘s appeal. However, Clark directs us to a recent Court of Appeals decision, State v. McCroy, 57 Kan. App. 2d 643, 649, 458 P.3d 988 (2020), in which the panel held that ”
In reaching this conclusion, the McCroy panel recognized that
While our recent decisions cited by the panel undertake a more extensive statutory analysis than Scherzer did, none of those decisions directly bear on the jurisdictional issue raised here. See, e.g., LaPointe, 305 Kan. at 955 (dismissing State‘s appeal from order granting DNA testing because it met none of the criteria in
Adherence to Stare Decisis Is Warranted Under the Circumstances
The doctrine of stare decisis provides that “points of law established by a court are generally followed by the same court and courts of lower rank in later cases in which the same legal issue is raised.” Hoesli v. Triplett, Inc., 303 Kan. 358, 362-63, 361 P.3d 504 (2015). Because adherence to precedent promotes the stability of our legal system, “we do not lightly disapprove of precedent.” State v. Spencer Gifts, 304 Kan. 755, 766, 374 P.3d 680 (2016).
“While ‘stare decisis is not an inexorable command,’ this court endeavors to adhere to the principle unless clearly convinced a rule of law established in its earlier cases “was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent.“’ [Citations omitted.]” State v. Hambright, 310 Kan. 408, 416, 447 P.3d 972 (2019).
We are not “clearly convinced” that Scherzer was originally erroneous or is no longer sound because of changing conditions. McCroy explains that
McCroy‘s statutory analysis, however, raises more questions than it resolves. McCroy suggests the phrase “any case properly before it” within
Additionally, McCroy‘s declaration that ”
McCroy also appears to overstate Scherzer‘s “expansive view of appellate courts’ inherent authority” under
Scherzer‘s construction is defensible, particularly given the language of the statutes in question. We have recognized that
The panel in McCroy also suggests the placement of the illegal sentence statute in Article 35 of the Code of Criminal Procedure, which governs posttrial motions, suggests it is not jurisdictional. McCroy, 57 Kan. App. 2d at 648. But “The legislature is not involved in the placement or numbering of statutes, and it is long established that ‘[t]he placement of a law in a particular location in the General Statutes by the compiler is not persuasive as to the intent of the legislature which enacted the statute.“” State v. Schuster, 273 Kan. 989, 994, 46 P.3d 1140 (2002) (quoting Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, Syl. ¶ 3, 610 P.2d 1107 [1980]). In contrast, Scherzer‘s interpretation of the phrase “at any time” under
And Scherzer is not the only decision to interpret
Arguably, the rationale in McCroy evidences possible ambiguity in
Moreover, we have acknowledged “[t]he doctrine of stare decisis is particularly compelling in cases where, as here, the legislature is free to alter a statute in response to court precedent with which it disagrees but declines to do so.” State v. Quested, 302 Kan. 262, 278, 352 P.3d 553 (2015); see McCullough, 308 Kan. at 1036. We note that more than a quarter century (over 27 years) has passed since Scherzer was decided, and the Legislature has not amended
For these reasons, we are not “clearly convinced” Scherzer was originally erroneous or is no longer sound because of changing
Clark‘s 2019 Sentence Is Illegal
In its opening brief, the State argues the district court imposed an illegal sentence at Clark‘s resentencing in 2019. In response, Clark argues his 2019 sentence should stand because the district court correctly calculated his criminal history score in accordance with Wetrich. Before reaching the merits of this argument, it is first helpful to review how sentencing law has evolved over the time period relevant to this appeal.
Development and Evolution of Relevant Sentencing Law
Our court has long defined an illegal sentence as a sentence imposed by a court without jurisdiction; a sentence that does not conform to the applicable statutory provision, either in character or punishment; or a sentence that is ambiguous with respect to the time and manner in which it is to be served. See, e.g., State v. Thomas, 239 Kan. 457, 460, 720 P.2d 1059 (1986). In 2017, the Legislature codified this definition, but clarified “[a] sentence is not an ‘illegal sentence’ because of a change in the law that occurs after the sentence is pronounced.” L. 2017, ch. 62, § 9;
Clark filed his motion to correct an illegal sentence shortly before the 2017 amendments took effect, and the district court denied the motion later that year. In denying the motion, the district court relied on State v. Vandervort, 276 Kan. 164, 179, 72 P.3d 925 (2003), overruled on other grounds by State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015), which held that “[f]or purposes of determining criminal history, the [out-of-state offense and Kansas offense] need only be comparable, not identical” under
In 2018, while Clark‘s appeal was still pending, we issued Wetrich, which altered Vandervort‘s interpretation of
In 2019, the Court of Appeals issued Clark I, reversing the district court‘s denial of Clark‘s motion to correct an illegal sentence. The panel found that, under the identical-or-narrower approach identified in Wetrich, the Oklahoma offense for placing bodily fluids on a government employee was not comparable to any Kansas offense, and thus the district court erred in denying Clark‘s motion. Clark I, 2019 WL 1746772, at *5-6. The panel also held that it need not decide whether the 2017 amendments to
On the same day the Court of Appeals issued Clark I, we issued State v. Murdock, 309 Kan. 585, 439 P.3d 307 (2019) (Murdock II). There, we held the legality of a sentence under
Shortly after we issued Murdock II, the Kansas Legislature‘s 2019 amendments to
While the remand from Clark I was still pending before the district court, we also issued State v. Weber, 309 Kan. 1203, 1209, 442 P.3d 1044 (2019), which held that Wetrich constituted a change in law for the purposes of determining whether a defendant‘s sentence was illegal under
Based on these legal developments, the State claims Clark‘s 2019 sentence is illegal. Relying on Tauer and Dawson, the State argues the legality of Clark‘s sentence must be determined in accordance with the law in effect in 2005. According to the State, Wetrich cannot render Clark‘s 2005 sentence illegal because that decision was a change in law decided in 2018.
Standard of Review
Whether a sentence is illegal is a question of law over which we have unlimited review. State v. Sartin, 310 Kan. 367, 369, 446 P.3d 1068 (2019). To decide whether Clark‘s sentence is illegal, we must determine the proper classification of his prior convictions for the purpose of calculating his criminal history score. The resolution of this issue involves interpretation of the Kansas Sentencing Guidelines Act. Like the legality of a sentence, statutory interpretation is a question of law over which we have unlimited review. State v. Bryant, 310 Kan. 920, 921, 453 P.3d 279 (2019).
The Law in Effect in 2005 Applies in Determining the Legality of Clark‘s Sentence
The Court of Appeals, in Clark II, found the district court incorrectly calculated Clark‘s criminal history score at resentencing. In making this determination, the panel applied the law as it existed at the time of Clark‘s original sentencing in 2005. Clark argues this is error. Because the Court of Appeals vacated Clark‘s original sentence in Clark I, he claims the district court correctly applied the law as it existed at the time of his resentencing in 2019.
We agree with the Court of Appeals that for purposes of determining the legality of Clark‘s sentence, the law from the date of his original sentencing should control. After all, this case arose from Clark‘s 2017 motion to correct his 2005 sentence. Clark‘s resentencing in 2019 only occurred because Clark I held his 2005 sentence was illegal—a holding that became erroneous as a result of decisions we issued prior to Clark‘s resentencing in 2019. Thus, if Clark‘s sentence was lawful in 2005, he should have never been resentenced in 2019.
Murdock II confirms “[t]he legality of a sentence is fixed at a discrete moment in time—the moment the sentence was pronounced.” 309 Kan. at 591. The legality of Clark‘s sentence became “fixed” when his sentence was pronounced in 2005. Thus, whether his prior Oklahoma conviction is comparable to a Kansas offense should be determined under the law as it existed in 2005. Thus, Vandervort‘s interpretation of
Clark‘s Original Sentence Is Legal Under the Law in 2005, and Clark‘s 2019 Sentence Is Illegal
When classifying an out-of-state conviction for criminal history purposes, the statute requires the sentencing court follow a two-step process: first, determining whether the prior conviction is a felony or misdemeanor; and then determining whether the crime should be classified as a person or nonperson offense. See
In determining whether a prior out-of-state conviction should be classified as a person or nonperson offense, courts compare the out-of-state conviction with the comparable Kansas offense in effect at the time defendant committed the current crime of conviction.
Clark‘s PSI report evidenced his prior conviction for “Placing Bodily Fluids Upon [a] Government Employee” under
“Every person in the custody of the state, a county or city or a contractor of the state, a county or a city who throws, transfers or in any manner places feces, urine, semen, saliva or blood upon the person of an employee of the state, a county or a city or an employee of a contractor of the state, a county or a city shall, upon conviction thereof, be guilty of a felony.”
Okla. Stat. tit. 21, § 650.9
According to Clark, his Oklahoma conviction should be compared to battery of a law enforcement officer under
“Battery against a law enforcement officer is a battery, as defined in
K.S.A. 21-3412 and amendments thereto:
“(a) (1) Committed against a uniformed or properly identified state, county or city law enforcement officer, other than a state correctional officer or employee, a city or county correctional officer or employee, a juvenile correctional facility officer or employee or a juvenile detention facility officer or employee, while such officer is engaged in the performance of such officer‘s duty.”
“(1) Intentionally or recklessly causing bodily harm to another person; or
“(2) intentionally causing physical contact with another person when done in a rude, insulting or angry manner.”
In Clark II, the Court of Appeals held that under Vandervort, Clark‘s conviction under
On review, Clark does not challenge the Court of Appeals’ comparability analysis under Vandervort. Instead, he argues that his 2019 sentence should stand for two other reasons: (1) the mandate rule required the district court to resentence him in accordance with the Court of Appeals’ decision in Clark I; and (2) the doctrine of constitutional avoidance required the sentencing court to apply the rule identified in Wetrich.
The Mandate Rule Does Not Render the 2019 Sentence Legal
“In Kansas, . . . the mandate rule is a statutory imperative that requires lower courts follow the mandates issued by appellate courts.” State v. Cheeks, 313 Kan. 60, 66, 482 P.3d 1129, 1134 (2021). This rule arises from two statutory provisions.
In Clark I, the Court of Appeals vacated the district court‘s judgment and remanded for resentencing with Clark‘s Oklahoma conviction classified as a nonperson felony. Clark I, 2019 WL 1746772, at *6. Thus, under the mandate in Clark I, the district court had to resentence Clark with a criminal history of C. But in Clark II, the Court of Appeals held that the district court was not bound by Clark I‘s mandate at resentencing. The Clark II panel recognized an exception to the mandate rule when a controlling authority issues an intervening change in the applicable law. Clark II, 2020 WL 1903820, at *4 (quoting State v. Montanez, No. 114,473, 2017 WL 749031, at *2 [Kan. App. 2017] [unpublished opinion]). Because Weber and Newton confirmed that Wetrich was a change in the law, as contemplated by Murdock II, the panel concluded the district court was no longer bound by Clark I‘s mandate at the time of resentencing in 2019. Clark II, 2020 WL 1903820, at *4.
However, the “intervening change in the law exception” the panel relied on in Clark II, applies only to the law of the case doctrine—a rule created by common law. We have declined to extend this exception to the statutorily derived mandate rule. So, “[w]hile different panels of the Court of Appeals hearing successive appeals in the same case may, in exceptional circumstances, depart from the law of the case, under Kansas law no exceptional circumstances permit a lower court to circumvent the mandate of a higher court.” Building Erection Svcs. Co. v. Walton Construction Co., 312 Kan. 432, Syl. ¶ 1, 475 P.3d 1231 (2020). This holds true “even when a change in the law has occurred.” State v. Kleypas, 305 Kan. 224, 297, 382 P.3d 373 (2016).
What, then, is a district court to do when an appellate court‘s mandate effectively requires the district court to impose an illegal sentence? In the situation before us, the district court ideally would have resentenced Clark in accordance with Clark I‘s mandate, then construed the State‘s challenge to the legality of that sentence as a motion to correct an illegal sentence. Under
We realize the district court was placed in the unenviable position of having to choose between a Court of Appeals mandate and Kansas Supreme Court precedent with no clear direction on how to proceed. And we do not fault the district court for complying with the mandate. Rather, the district court error is a technical one arising from the failure to subsequently correct the illegal sentence mandated by Clark I. Because of this procedural technicality, Clark‘s 2019 sentence is illegal, and he should be resentenced with his Oklahoma conviction for placing bodily fluids on a government employee classified as a person felony.
We would be remiss not to mention the State could have avoided this complicated analysis and saved the district court from the difficult dilemma it faced at the 2019 resentencing, if it had simply filed a petition for review of Clark I. After all, Murdock II was released on the same date. Ordinarily, the State‘s failure to do so would have been fatal. Building Erection Svcs. Co., 312 Kan. 432, Syl. ¶ 2 (“A party who fails to petition the Kansas Supreme Court for review of a Court of Appeals decision is bound by the holding of that decision.“). However, the Legislature‘s broad grant of authority enabling courts to correct an illegal sentence at any time resurrected the State‘s challenge.
The Doctrine of Constitutional Avoidance Does Not Render the 2019 Sentence Legal
Alternatively, Clark argues the doctrine of constitutional avoidance requires the court to apply Wetrich‘s identical-or-narrower rule to all sentences imposed after the United States Supreme Court opinion in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The doctrine of constitutional avoidance is a rule of statutory construction. It imposes a duty
Clark argues that Wetrich‘s interpretation of the term “comparable” is the only constitutional interpretation of
We find this argument unpersuasive. In Vandervort, we explicitly rejected the statutory construction that Clark claims is compelled by Apprendi. See Vandervort, 276 Kan. at 179 (“Vandervort confuses the term ‘comparable’ with the concept of identical elements of the crime.“). Notably, Vandervort was decided three years after Apprendi. Furthermore, before Wetrich, no other Kansas case construed the term “comparable” as encompassing the identical-or-narrower requirement. Thus, Wetrich, not Apprendi, created the new construction of the term “comparable” as used in
Further, while Clark characterizes his argument as one of statutory construction, the essence of his challenge appears to be that the application of the rule in Vandervort would render his sentence unconstitutional under Apprendi. But the issues in this appeal arise under the illegal sentence statute,
Based on the foregoing analysis, we affirm the judgment of the Court of Appeals, reverse the judgment of the district court, vacate Clark‘s 2019 sentence, and remand for resentencing consistent with this opinion.
STANDRIDGE, J., not participating.