Opinion
No. 111,090.
2014-11-7
STATE of Kansas, Appellee, v. Mark T. BOYLE, Appellant.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge.Mark T. Boyle, appellant pro se.Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge.
Mark T. Boyle, appellant pro se. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., ARNOLD–BURGER, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is Mark T. Boyle's appeal of his 2013 pro se motion to correct his alleged illegal sentences after he was convicted in 1997 by a jury of two counts of aggravated criminal sodomy and two counts of sexual battery. The district court summarily denied Boyle's motion. Boyle has appealed.
Factual and Procedural Background
On December 12, 1997, Boyle was convicted by a jury of two counts of aggravated criminal sodomy and two counts of sexual battery. One of the convictions of aggravated criminal sodomy was charged as an alternative count, and the jury found Boyle guilty of one count based on both of the alternatives charged.
The district court sentenced Boyle by using the aggravated number in the presumptive sentencing box for each conviction. For the primary conviction of aggravated criminal sodomy, the district court sentenced Boyle to 270 months based on his criminal history score of C. For all other convictions, the district court used a criminal history score of I and sentenced Boyle to 154 months for the second aggravated criminal sodomy, and 12 months each for the sexual battery convictions with all convictions running consecutively.
On September 6, 2013, Boyle filed with the district court a pro se motion to correct illegal sentence pursuant to K.S.A. 22–3504(1), arguing the district court illegally sentenced him to three convictions of aggravated criminal sodomy, with two of them counting as the primary offense, and that the district court usurped the role of the jury by sentencing him to the aggravated sentence within the presumptive sentencing range for the crimes. The State filed a response to that motion. The district court summarily dismissed the motion to correct the illegal sentence and adopted the State's response as its finding of facts and conclusions of law. Boyle timely appeals this ruling.
Analysis of Appellate Issues
Did the district court erroneously sentence Boyle using the criminal history score C for multiple crimes?
Boyle first argues the district court erred in denying his motion to correct illegal sentence because the district court illegally sentenced him to three convictions of aggravated criminal sodomy and used the criminal history score of C to increase the punishment on two of those counts. When the district court summarily denies a motion to correct an illegal sentence under K.S.A. 22–3504, our standard of review is de novo “because appellate courts have the same access to the motion, records, and files as the district court.” State v. Howard, 287 Kan. 686, 691, 198 P.3d 146 (2008). This court then must determine whether the documents conclusively show that the defendant is entitled to no relief. State v. Heronemus, 294 Kan. 933, 935, 281 P.3d 172 (2012).
Boyle's first issue appears to be based on a misunderstanding of his sentence. Boyle was convicted and sentenced to two instances of aggravated criminal sodomy, not three. A jury found Boyle guilty of both counts 10 and 11, two alternative charges of a single instance of aggravated criminal sodomy against the victim L.B. The district court sentenced Boyle to 270 months under that one conviction, using it as the primary offense for sentencing purposes. Boyle was also convicted of one count of aggravated criminal sodomy against the victim C.G. The district court sentenced Boyle to 154 months for that conviction. Boyle's claim that he was convicted and sentenced for three instances of aggravated criminal sodomy is unsupported by the record. The district court correctly determined that the record conclusively showed Boyle was entitled to no relief for this contention. Did the district court illegally sentence Boyle by using the aggravated number in the presumptive sentencing range without submitting the issue to a jury?
Boyle next argues that the district court erred in denying his motion to correct an illegal sentence because the district court violated the Sixth Amendment of the United States Constitution by sentencing him to the aggravated number in the presumptive sentencing range for his crimes and by bypassing the jury's factual determination for sentencing. When the district court summarily denies a motion to correct an illegal sentence under K.S.A. 22–3504, the standard of review is de novo “because appellate courts have the same access to the motion, records, and files as the district court.” Howard, 287 Kan. at 691. This court then must determine whether the documents conclusively show that the defendant is entitled to no relief. 294 Kan. at 935.
Boyle primarily relies upon Alleyne v. United States, 570 U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), to support his argument that sentencing him to the aggravated number in the presumptive sentencing range violated the Sixth Amendment. Our Supreme Court has discussed this issue, finding “ Alleyne's holding does not implicate judicial factfinding within a legislatively established sentencing range.” State v. Soto, 299 Kan. 102, 123, 322 P.3d 334 (2014) (contrasting an aggravated presumptive sentence where “judicial factfinding increases neither the floor nor the ceiling of the statutorily authorized sentencing range” with the hard–50 sentencing scheme that “undeniably and appreciably increases the mandatory punishment imposed for first-degree premeditated murder from 25 years' imprisonment to 50 years' imprisonment.”). As our Supreme Court has held that Alleyne does not apply to the sentencing situation that Boyle complains about, the law and facts of the case conclusively shows that Boyle was entitled to no relief.
Even further, the portion of sentencing Boyle quotes to shows the district court disregarded the jury's findings of fact was not made in the context of sentencing Boyle, but in denying Boyle's motion for a departure sentence. The language Boyle quotes started with the district court stating:
“Addressing the motions for departure, I'll find that most of Mr. Boyle's factors for downward departure are just factually not correct. Even if they were factually correct, they would not be the basis for a departure. I find that [C.G.] did not consent. That's very clear from the evidence. I know what the jury found, and there's a difference between reasonable doubt for a finding of guilt and a court's findings.
“I'll find that, in spite of [L.B.]'s testimony, certainly her first date and her first sexual encounter with Mr. Boyle, that wasn't consensual sex. I find it's more probably true than not true that both [C.G.] and [L.B.] were drunk. The evidence is there.”
The language Boyle relies on was not made in the context of sentence enhancing factors, but was made in discussing the various arguments Boyle put forth in his motion for a downward departure in sentencing. In particular, it discusses Boyle's argument that viewed the instances of sexual contact where the jury found Boyle not guilty as consensual. The State made the argument in reply that “just because the jury found the way they did that we can make the assumption that they felt it was consensual.” The language Boyle quotes was clearly made in the context of denying a motion to depart, not in determining Boyle's sentence and is not helpful to his argument here. As our Supreme Court has held that Alleyne does not apply to the sentencing situation that Boyle complains about, the law and facts of the case conclusively shows that Boyle was entitled to no relief.
The district court is affirmed.