STATE OF KANSAS, Appellee, v. JAMES LEE JAMERSON, Appellant.
No. 115,629
IN THE SUPREME COURT OF THE STATE OF KANSAS
Decision filed January 25, 2019.
SYLLABUS BY THE COURT
- Interpretation of sentencing statutes is a question of law over which an appellate court exercises unlimited review.
- Whether a sentence is illegal within the meaning of
K.S.A. 22-3504 is also a question of law over which an appellate court has unlimited review. - Under
K.S.A. 22-3504(1) , courts may correct an illegal sentence at any time. - When one or more of the sentences in a multiconviction case is illegal under
K.S.A. 22-3504 , district courts may only correct the illegal sentence or sentences.
- When correcting an illegal sentence, the district court‘s authority in setting the length of the new prison term includes determining whether the corrected sentence will
run consecutive to, or concurrent with, the other sentences.
Review of the judgment of the Court of Appeals in an unpublished decision filed February 3, 2017. Appeal from Shawnee District Court; EVELYN Z. WILSON, judge. Decision filed January 25, 2019. Judgment of the Court of Appeals affirming in part, vacating in part, and remanding with directions is affirmed in part and reversed in part. Judgment of the district court is affirmed in part, vacated in part, and remanded with directions.
Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, argued the cause, and was on the brief for appellant.
Jodi E. Litfin, assistant solicitor general, argued the cause, and Rachel L. Pickering, assistant solicitor general, Chadwick J. Taylor, former district attorney, Michael F. Kagay, district attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.
The decision of the court was delivered by
NUSS, C.J.: James Lee Jamerson challenges his resentencing after the district court granted his motion to correct an illegal sentence but then also modified the duration and concurrent nature of one of his legal, nonbase sentences. The primary issue presented asks: to what extent can a district court modify multiple sentences when only some of them are held to be illegal following a motion to correct an illegal sentence?
We conclude the district court may only correct the illegal sentences. We affirm in part and vacate in part the decision of that court, affirm in part and reverse in part the decision of the Court of Appeals, and remand with directions.
FACTS AND PROCEDURAL HISTORY
In 2001, Jamerson pled no contest to (1) second-degree murder, a severity level 1 person felony; (2) aggravated robbery, a severity level 3 person felony; and (3) conspiracy to commit aggravated robbery, a severity level 5 person felony. Jamerson and the State agreed to recommend a 288-month controlling prison sentence, and the district court agreed to follow the recommendation. In its implementation, the court determined Jamerson had a criminal history score of D and sentenced him to a standard grid box term of 253 months for second-degree murder; a downward departure to 35 months for aggravated robbery; and a downward departure to 35 months for conspiracy. The court ordered the aggravated robbery sentence to run consecutive to the second-degree murder sentence and the conspiracy sentence to run concurrent with both. This resulted in a total controlling sentence of 288 months’ imprisonment.
Fourteen years later in 2015, Jamerson filed a pro se motion to correct an illegal sentence, and his appointed counsel later filed a supplemental motion. Jamerson argued his criminal history score was incorrect at sentencing. After holding an evidentiary hearing, the court determined Jamerson‘s criminal history should have been H, not the more serious D. To correct the error, Jamerson and the State both recommended that the second-degree murder sentence be reduced from 253 months to 176 months. This would in turn reduce the controlling sentence to 211 months’ imprisonment.
At resentencing, the court noticed another error in Jamerson‘s sentences. Specifically, the 2001 sentencing court had erroneously also applied Jamerson‘s criminal history to the nonbase sentences of aggravated robbery and conspiracy to commit aggravated robbery. Under the sentencing guidelines, the court does not apply the defendant‘s criminal history score to nonbase sentences but instead uses the gridbox applicable for no criminal history, or I.
Jamerson appealed, arguing the court only had authority to correct the illegal second-degree murder sentence and lacked jurisdiction to modify his unchallenged aggravated robbery and conspiracy sentences.
The Court of Appeals panel concluded the 2015 resentencing court had jurisdiction to modify the conspiracy sentence from the erroneous downward departure of 35 months to the appropriate aggravated term of 34 months because the sentence itself was illegal, independent of the illegal base sentence for second-degree murder. State v. Jamerson, No. 115,629, 2017 WL 462716 (Kan. App. 2017) (unpublished opinion). But it concluded the court did not have jurisdiction to deviate from the original sentence by making the conspiracy sentence run consecutive to the second-degree murder and aggravated robbery sentences or to resentence Jamerson to 59 months for aggravated robbery. The panel held Jamerson should have a controlling sentence of 221 months—186 for the base sentence for second-degree murder; 35 for aggravated robbery, consecutive to the murder; and 34 for conspiracy, to be served concurrently with the other two sentences. 2017 WL 462716, at *4.
The State petitioned this court for review of the panel‘s decision. Our jurisdiction is under
ANALYSIS
Issue: When correcting an illegal base sentence, did the resentencing court have jurisdiction to vacate and resentence Jamerson‘s two nonbase sentences?
Standard of review
Jamerson‘s arguments require us to interpret sentencing statutes. Their interpretation is a question of law over which this court exercises unlimited review. State v. Guder, 293 Kan. 763, 765, 267 P.3d 751 (2012). Furthermore, whether a sentence is illegal within the meaning of
The State argues Guder should be overruled.
The State first urges this court to reexamine our holding in Guder because here it leads to an absurd result. The State asks us to either reverse or carve out an exception to Guder and hold that some authority still exists to treat criminal sentences as a single entity. Per the State, this is especially compelling in instances where the record clearly shows the State and defense reached the original sentence in a plea deal by considering the sentence in its entirety. The State complains that under Guder a defendant can game the system and undermine a plea agreement by waiting until after sentencing to object to incorrect criminal history scores.
The Guder court, however, thoroughly analyzed legislative intent and the effect of the Kansas Sentencing Guidelines Act,
The State argues Guder does not apply.
Alternatively, the State argues Guder does not apply because of the procedural differences between the facts in Guder and in this
In a case based on a motion to correct an illegal sentence and without remand instructions, the State contends
“The sentencing judge shall otherwise have discretion to impose concurrent or consecutive sentences in multiple conviction cases. The sentencing judge shall state on the record if the sentence is to be served concurrently or consecutively.”
K.S.A. 21-4720(b) .
The State suggests that correcting an illegal sentence should follow the same rules as those applied to sentencing on all counts for the first time. It asserts that
Admittedly, the statutory authority to correct an illegal sentence does not come from the KSGA. Rather,
Absent further direction by the statute itself, we must turn to the KSGA for guidance on correctly sentencing offenders. See
The dissent faults us for a perceived lack of detailed analysis. And it also argues that
The State argues Morningstar provides authority to reconsider the entire sentence.
As a further alternative, the State argues that our decision in State v. Morningstar, 299 Kan. 1236, 329 P.3d 1093 (2014), provides a court with authority to reconsider the entire sentence at resentencing. While this is not entirely correct, Morningstar does lend some support to the State‘s position that the 2015 court had more discretion in resentencing Jamerson than the Court of Appeals panel allowed.
The defendant in Morningstar was convicted of rape of a child under 14, aggravated battery, abuse of a child, and child endangerment. He was originally sentenced to an off-grid hard 25 life sentence for the rape conviction under Jessica‘s Law. He also received term-of-years sentences for the remaining convictions, to run concurrent with each other and the rape sentence. We vacated the off-grid rape sentence because the State failed to prove the defendant‘s age to the jury as required by statute. We remanded for resentencing on the rape conviction “‘as a felony on the KSGA nondrug sentencing grid.‘” 299 Kan. at 1238.
Requiring a grid sentence for rape made it the base sentence because rape was a higher severity level grid offense than the other convictions. Because rape—and not aggravated battery—was now the base sentence, the aggravated battery sentence had to be recalculated without applying the criminal history score.
The Morningstar court found that argument largely unpersuasive because in multiple conviction cases like Morningstar, whether a sentence runs consecutive to the defendant‘s other sentence or sentences is related to, if not intertwined with, the sentencing court‘s discretion to choose the appropriate term of months. The district court necessarily has to apply the KSGA provisions governing the terms of grid sentences to determine the sentence‘s length. In doing so, the court has to exercise its independent judgment—within the limitations imposed by the KSGA—to determine the appropriate sentence. Further, both
Under Morningstar, here the 2015 court did not have the authority at resentencing to modify the original (legal) aggravated robbery sentence. But it did have authority to modify the original (illegal) sentences for second-degree murder and conspiracy, which would include whether they would run consecutive to, or concurrent with, the other sentences. Morningstar, 299 Kan. 1236, Syl. ¶ 5 (“When a term of imprisonment is vacated on appeal and remanded for resentencing, the district court‘s authority in setting the length of the new prison term includes determining on remand whether it will run consecutive to the defendant‘s other terms of imprisonment.“). The KSGA permits a district court imposing a term of imprisonment upon resentencing to determine anew whether the prison terms runs consecutive to a defendant‘s other sentences.
In conclusion, we hold that our decisions from Guder and Morningstar apply to resentencing based on a motion to correct an illegal sentence. This holding means that here the district court erred in increasing the legal aggravated robbery sentence from 35 to 59 months. But it did have authority to resentence the illegal sentences for both second-degree murder (from 253 to 186 months) and conspiracy (from 35 to 34 months). And despite the holding of the panel, this included the authority to order the conspiracy sentence to run consecutive to the others.
Consequently, we reverse and remand for resentencing. The original 35-month sentence for aggravated robbery, which was not illegal,
LUCKERT, J., not participating.
WILLIAM R. MOTT, District Judge, assigned.1
* * *
JOHNSON, J., concurring in part and dissenting in part: I agree with the majority that, in conformance with our holding in State v. Guder, 293 Kan. 763, 267 P.3d 751 (2012), the district court erred when it modified Jamerson‘s original sentence for aggravated robbery because that sentence was not illegal and, therefore, was not subject to correction under
First, there is no statutory basis upon which to characterize a sentence correction under
More recently, in Guder, we reiterated that “[t]he 1992 amendments to the Kansas sentencing statutes deprived district courts of the jurisdiction to modify sentences except to correct arithmetic or clerical errors, to consider or reconsider departures from presumptive sentences, or to modify sentences by reinstating previously revoked probations. [Citations omitted.]” 293 Kan. at 766. Further, corroborating that the Legislature acted intentionally, Guder pointed out:
“When it enacted the KSGA, our legislature explicitly addressed remands following reversal.
K.S.A. 21-4720(b)(5) provides that, in the event that a conviction of the primary crime is reversed on appeal, the sentencing court is to follow all of the KSGA provisions concerning sentencing in multiple conviction cases.“Nothing in the statutory scheme, however, allows resentencing on other convictions following the vacating of a sentence on appeal. It is telling that the legislature expressly set out the authority of district courts to resentence on remand, without giving them authority to resentence on other convictions when only the sentence for the primary conviction is vacated. It is also telling that, in repealing the old statute and replacing it with a new version in 2010, the legislature retained the limitation to remands when the primary conviction is reversed. See L. 2010, ch. 136, sec. 300(b)(5). We will not add words to the statute that would provide jurisdiction to resentence on other counts when only the sentence on the primary conviction is vacated. This court ascertains the legislature‘s intent through the statutory language it uses, and it will not read a statute to add something not readily found in it. State v. Finch, 291 Kan. 665, Syl. ¶ 2, 244 P.3d 673 (2011).” 293 Kan. at 766-67.
Consequently, if the district court‘s new sentence is to survive, it must comply with the
Normally, our first step in determining whether a district court‘s acts fall within the purview of a statute is to look at what the statute actually says, giving common words their ordinary meanings. See State v. Phillips, 299 Kan. 479, 495, 325 P.3d 1095 (2014). (legislative intent ascertained through statutory language, giving common words their ordinary meanings). In our case, the applicable statutory language is quite straightforward: “The court may correct an illegal sentence at any time.”
Granted, one can find a rule of statutory construction to support a desired result in many instances. But incorporating an entire act into a plainly worded statute because we believe it would be the logical thing to do is directly contrary to our most basic statutory construction concepts. To begin, when there is no ambiguity in a statute, we simply have no need to resort to canons of construction. Phillips, 299 Kan. at 495. “When a statute is plain and unambiguous, this court must give effect to the statute‘s express language, instead of determining what the law should or should not be.” Redd v. Kansas Truck Center, 291 Kan. 176, 188, 239 P.3d 66 (2010). When the statutory language is plain, we refrain from reading something into the statute that is not readily found in its words. State v. Brooks, 298 Kan. 672, 685, 317 P.3d 54 (2014). Most certainly, we do not read an entire act into a single statute, unless that statute‘s language could be read to permit such incorporation. I submit that such a reading of
By implication, then, the majority must have found ambiguity in
Perhaps it is useful to consider not only what the statute says, but also what it does not say. For instance,
There are circumstances under which the imposition of a concurrent sentence could be illegal as nonconforming to statutory provisions. See, e.g.,
Finally, the majority attempts to find support in State v. Morningstar, 299 Kan. 1236, 329 P.3d 1093 (2014). That reliance is misplaced; Morningstar is factually distinguishable. Morningstar‘s conviction for off-grid rape was reversed because the State failed to prove an essential element of that crime. The case was remanded for sentencing on the lesser included offense of on-grid rape, i.e., the district court was directed to impose an initial sentence on a new conviction. The reversal also caused a change in the primary crime in a multiple conviction case. As noted above, Guder explained that the Legislature treats a conviction reversal in a multiple convictions case differently than an illegally imposed sentence. And, as the majority notes, a minority opined that Morningstar suffered from flawed rationale. See Morningstar, 299 Kan. at 1247-50 (Johnson, J., joined by Beier, J., dissenting).
In short, I would agree with the majority that the district court erred in increasing the legal aggravated robbery sentence from 35 to 59 months but did not err in correcting the second-degree murder sentence to 186 months and correcting the conspiracy sentence to 34 months. But I would hold that the district court erred when it resentenced Jamerson to serve his conspiracy sentence consecutively.
BEIER, J., joins in the foregoing concurring and dissenting opinion.