STATE OF KANSAS v. RAMON JUILIANO
No. 123,831
IN THE SUPREME COURT OF THE STATE OF KANSAS
February 18, 2022
- An illеgal sentence is defined as a sentence imposed by a court without jurisdiction, a sentence that does not conform to the applicable statutory provision, or a sentence ambiguous about the time and manner to be served.
- Courts have statutory authority to correct an illegal sentence at any time, so an illegal sentence issue may be considered fоr the first time on appeal.
- The meaning of a sentence is derived from the context of the entire sentencing hearing.
- Where the sentence announced from the bench differs from the sentence described in the journal entry, the orally pronounced sentence controls.
Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed February 18, 2022. Affirmed.
Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, was on the brief for appellant.
Daniel G. Obermeier, assistant district attorney, and Mark A. Dupree Sr., district
The opinion of the court was delivered by
STANDRIDGE, J.: Ramon Anthony Juiliano appeals the district court‘s denial of his motion to correct an illegal sentence. A jury convicted Juiliano of criminal solicitation to commit first-degree murder and first-degree murder in 1998. The court sentenced Juiliano to life in prison without the possibility of parole for 40 years (hard 40). In 2014, Juiliano moved to correct an illegal sentence under
FACTS
In November 1997, a jury convicted Juiliano of criminal solicitation to сommit first-degree murder and premeditated first-degree murder in the shooting death of Jack West. The State moved for a hard 40 sentence under
Juiliano opposed the motion. He relied on State v. Cook, 259 Kan. 370, 913 P.2d 97 (1996), superseded by statute as stated in State v. McLinn, 307 Kan. 307, 409 P.3d 1 (2018), to claim shooting deaths seldom warrant a finding that the crime was committed in a heinous, atrocious, or cruel manner. He also asserted none of the recognized exceptions from State v. Brady, 261 Kan. 109, 929 P.2d 132 (1996), abrogation recognized by State v. Jones, 283 Kan. 186, 151 P.3d 22 (2007), or State v. Alford, 257 Kan. 830, 896 P.2d 1059 (1995), applied. Juiliano claimed he did not prolong the shooting or inflict any sort of extreme mental anguish before death. He argued that the case was not unusual as compared to other shooting deaths and, for that reason, the court could only impose a hard 25 sentence.
The district court held a sentencing hearing in February 1998. The court ultimately granted the State‘s motion to imрose a hard 40 sentence based on its finding that Juiliano committed the murder in an especially heinous, atrocious, and cruel manner. Along with the hard 40 sentence, the court imposed a consecutive 49-month sentence for the criminal solicitation charge.
Relevant to this appeal, the sentencing journal entry filed after the sentencing hearing failed to specify the specific statute under which the court imposed the hard 40 sentence. The journal entry also failed to identify which aggravating factors the court relied on to justify the hard 40 sentence. But the journal entry clarified multiple times that the court was imposing a hard 40 sentence and that it was granting the State‘s motion to impose a hard 40 sentence.
Juiliano appealed his convictions аnd sentence to this court. On direct appeal, he asserted that the district court committed reversible error in answering a jury question and challenged the sufficiency of the evidence supporting his convictions. We affirmed Juiliano‘s convictions and sentence. State v. Juiliano, 268 Kan. 89, 94-98, 991 P.2d 408 (1999).
ANALYSIS
Whether a sentence is illegal is a question of law subject to de novo review. State v. Redding, 310 Kan. 15, 23, 444 P.3d 989 (2019). An illegal sentence is defined as: (1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in character or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served.
When a district court summarily denies a motion to correct an illegal sentence under
To the extent that these issues involve statutory interpretation, this court also exercises unlimited review over such questions. State v. Jamerson, 309 Kan. 211, 214, 433 P.3d 698 (2019).
Juiliano argues that the district court erred in summarily denying his motion to correct an illegal sentence. He concedes his claim that Soto and Alleyne should be retroactively applied is now foreclosed by our decision in State v. Brown, 306 Kan. 330, Syl. ¶¶ 1, 2, 393 P.3d 1049 (2017) (holding thаt motions to correct illegal sentence were not appropriate vehicle to challenge sentence imposed in violation of Alleyne and
recognizing Alleyne only applies prospectively). Instead, Juiliano raises three new arguments to support his illegal sentence claim: (1) the court orally imposed a sentence at the sentencing hearing that did not conform to the appropriate statutory language; (2) the court erred by finding that he committed the murder in an especially heinous, atrocious, or cruel manner; and (3) the court erred by failing to reduce to writing the statutory criteria it relied on to impose the hard 40 sentence.
The State argues Juiliano abandoned these arguments because he did not properly explain why we should considеr them for the first time on appeal. Even so, courts have a statutory duty to correct an illegal sentence at any time. Although Juiliano failed to argue one of the recognized exceptions to the preservation rule in his brief, this court can address the illegal sentence issues for the first time on appeal. See State v. Sartin, 310 Kan. 367, 375, 446 P.3d 1068 (2019); State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019).
1. The district court‘s oral pronouncement of sentence
Juiliano first argues that his sentence, as pronounced from the bench, is illegal because it does not conform to the appropriate statutory language. He challenges the following wording in the district court‘s oral pronouncement at sentencing:
“Based upon these reasons, I am granting the State‘s motion for the hard 40 sentence on the first degree premeditated murder case.
The defendant will be sentenced over intо the custody of the Department of Corrections on the one count of murder, K.S.A. 21-3401, a person felony off grid, to the hard 40 sentence of life without parole.” (Emphases added.)
Juiliano argues the italicized language establishes the judge sentenced him to a “life without parole” sentence instead of a true hard 40 sentence. Because a life without parole
sentence does not conform to the statutory authorized provisions in
The court sentences a person convicted of a crime in accordance with the sentencing provisions in effect when the person committed the crime. State v. Overton, 279 Kan. 547, 561, 112 P.3d 244 (2005). The applicable statutes for sentencing in effect when Juiliano committed his crimes were
“When it is provided by law that a person shall be sentenced pursuant to this section, such person shall be sentenced to imprisonment for life and shall not be eligible for probation or suspension, modification or reduction of sentence. In addition, a person sentenced pursuant to this section shall not be eligible for parole prior to serving 40 years’ imprisonment, and such 40 years’ imprisonment shall not be reduced by the application of good time credits.” (Emphases added.)
Juiliano‘s nonconforming “life without parole” argument is virtually identical to the one made in State v. Hill, 313 Kan. 1010, 1012, 492 P.3d 1190 (2021). In that case, the sentencing judge ordered Hill to serve a hard 50 sentence after he was convicted of
capital murder. At the sentencing hearing, the judge kept referring to the sentence for capital murder as a term of “life imprisonment without possibility of parole” even though both parties continued clarifying that the State was seeking a hard 50 sentence for the capital murder conviction. In pronouncing the hard 50 sentence, the judge specifically ordered Hill to serve a “‘sentence of life imprisonment without pоssibility of parole.‘” 313 Kan. at 1012. The parties understood the pronouncement to mean that Hill was to serve a hard 50 sentence, and the sentencing journal entry later reflected that he was to serve a hard 50 sentence. On appeal, Hill asserted for the first time that his sentence was illegal because the district court improperly pronounced a life without parole sentеnce, a sentence that was not statutorily authorized at the time of the pronouncement.
This court was not persuaded by Hill‘s argument. We pointed out that in looking narrowly at the words Hill focused on, we would agree that the sentencing judge failed to mention the mandatory minimum 50-year term. But when looking to the entire context of the sentencing hearing, it was “sufficiently clear to everyonе present that Hill was to receive the mandatory hard 50 sentence and they acted accordingly.” 313 Kan. at 1015. After explaining the context in greater detail, we determined, “[T]he meaning of the sentence pronounced from the bench is the sentence reflected in Hill‘s journal entry. There is ultimately no ambiguity and Hill is serving a legal sentence.” 313 Kan. at 1016.
Applying the principle from Hill to this case—i.e., evaluating the meaning of a sеntence based on the context of the entire sentencing hearing—we find the district court imposed a hard 40 sentence. While the court could have used better wording, the context makes it clear the court ordered Juiliano to serve a hard 40 sentence. The State filed a motion specifically requesting a hard 40 sentence under
response. This readily establishes the court understood the State was seeking the hard 40 sentence as outlined in
2. The aggravating circumstance
Juiliano next argues that the district court erred by imposing a hard 40 sentence because it improperly determined he committed the murder in an especially heinous, atrocious, or cruel manner. See
Juiliano‘s argument fails based on our court‘s holding in State v. Peirano, 289 Kan. 805, 217 P.3d 23 (2009). Peirano presented almost identical circumstances to the case here. Peirano was convicted in 1994 of two counts of first-degree murder and sentenced to serve two concurrent hard 40 life sentences. In imposing the hard 40 sentences, the sentencing court found an aggravating factor existed: Peirano committed the murders in
an especially heinous, atrocious, or cruel manner. Thirteen years later, he moved to correct an illegal sentence arguing that the district court erred in finding that the especially heinous, atrocious, or cruel aggravating factor applied.
Before addressing the issue, we determined that a mоtion to correct an illegal sentence under
“When, for example, a trial court failed to permit a defendant to offer argument in mitigation of sentence, the sentence was not illegal, because the sentencing court had jurisdiction and the sentеnces imposed were within the applicable statutory limits. State v. Heath, 285 Kan. 1018, 1019-20, 179 P.3d 403 (2008) (citing State v. Mebane, 278 Kan. 131, 134-35, 91 P.3d 1175 [2004]); see also Trotter v. State, 288 Kan. 112, 126-27, 200 P.3d 1236 (2009) (claim that multiple sentences arose from single wrongful act and violated Double Jeopardy Clause does not establish that sentence is illegal); State v. Mitchell, 284 Kan. 374, 377, 162 P.3d 18 (2007) (definition of illegal sentence does not encompass violations of constitutional provisions); State v. Harp, 283 Kan. 740, 744, 156 P.3d 1268 (2007) (sentence violating identical offense doctrine is not an illegal sentence within meaning of
K.S.A. 22-3504 ); State v. Johnson, 269 Kan. 594, 601, 7 P.3d 294 (2000) (claim that State‘s comments at sentencing were inconsistent with plea agreement does not render resulting sentence illegal).“In the present case, Peirano challenges the procedures that the district court followed in applying K.S.A. [1994 Supp.] 21-4635 to his sentence. The sentence itself was authorized by a valid statute, both as to its character and its term, and the sentence was not ambiguous with respect to the time and manner in which it was to be served. The sentence was therefore not illegal under the limited terms of
K.S.A. 22-3504 , and no reversible error has occurred.” Peirano, 289 Kan. at 807.
In other words, Peirano did not argue that the sentencing court lacked jurisdiction. He did not argue that the court imposed a sentence that failed to conform to the
authorized term in the applicable sentencing statute. He also did not argue that his sentence was not ambiguous as to the time or manner it was to be served. Rather, he challenged the procedure the court followed in imposing the statutorily authorized term—i.e., whether the sentencing court erred in finding the aggravating factor to exist. Because this was a procedural challenge, we ruled that it was inappropriatе to address with a motion to correct an illegal sentence. 289 Kan. at 807.
Juiliano, like the defendant in Peirano, ultimately challenges the procedure the district court followed in finding that the especially heinous, atrocious, or cruel aggravating factor applied. He does not argue that the sentencing court lacked jurisdiction to impose his sentence. He does not claim that his sentence is ambiguous as tо the time or manner it was to be served. Juiliano‘s sentence was authorized by a valid statute, both as to its character and its term, and the sentence was not ambiguous with respect to the time and manner in which it was to be served. The limited definition of an illegal sentence set forth in
3. Statutory “in writing” requirements
Juiliano finally argues that his sentence is illegal because the district court failed to follow the written requirements of
The State correctly counters this argument has no merit. Juiliano does not argue the district court lаcked jurisdiction to impose the hard 40 sentence. He does not argue
the sentence itself was not statutorily authorized. And he does not challenge his sentence as ambiguous. He simply argues the court failed to reduce certain findings to writing as the statutes required. As we note in the preceding section, the statutory definition of an illegal sentence is a limited one and does not аpply to journal entry discrepancies. A sentence in a criminal case is effective at the moment the court pronounces it from the bench. A sentencing judgment does not derive its effectiveness from the sentencing journal entry. The journal entry merely records the sentence imposed. State v. Phillips, 289 Kan. 28, 33, 210 P.3d 93 (2009). So if there is a discrepancy between the pronounced sentence and the written journal entry, our court has held that the pronounced sentence controls. Abasolo v. State, 284 Kan. 299, 304, 160 P.3d 471 (2007).
Applying that logic here, the sentencing hearing transcript clearly establishes the district court pronounced a hard 40 sentence. The analysis from the first section regarding the context of the entire sentencing hearing is incorporated and applied here. Any discrepancies in the journal entry do not trump that oral pronouncement, and the appropriate remedy for such errors is to file a motion for a nunc pro tunc order. See State v. Moncla, 262 Kan. 58, 79, 936 P.2d 727 (1997).
Affirmed.