Opinion
No. 106,072.
2012-08-17
STATE of Kansas, Appellee, v. Steven W. CARLSON, Appellant.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney, appellate division, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney, appellate division, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BUSER and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Steven W. Carlson appeals the denial of his motion to correct an illegal sentence. Carlson argues his sentence is illegal because the district court imposed his sentence consecutive to a previous sentence for which his probation had not been revoked. We disagree and affirm.
Whether a sentence is illegal within the meaning of K.S.A. 22–3504 is a question of law over which the appellate court has unlimited review. State v. LaBelle, 290 Kan. 529, 532, 231 P.3d 1065 (2010). An illegal sentence is “a sentence imposed by a court without jurisdiction; a sentence that does not conform to the statutory provision, either in the character or the term of authorized punishment; or a sentence that is ambiguous with respect to the time and manner in which it is to be served.” State v. Harsh, 293 Kan. 585, 588, 265 P.3d 1161 (2011).
On November 28, 2007, Carlson was convicted in McPherson County of aggravated battery and domestic battery. In February 2008, the trial court sentenced him to 12 months' imprisonment, but granted probation of 24 months. On December 8, 2008, while still on probation, Carlson pled guilty to an amended count of possession of methamphetamine in Sedgwick County. Carlson was sentenced to an underlying prison term of 24 months, but the court granted a downward dispositional departure to 12 months' probation. The court ordered Carlson's Sedgwick County sentence to run consecutive to the McPherson County sentence.
Carlson was unable to control his drug addiction and the Sedgwick County court revoked his probation on May 13, 2009. The court ordered Carlson to serve his original sentence. In December 2009, the McPherson County court also revoked Carlson's probation and ordered him to serve his 12–month sentence.
On May 10, 2010, Carlson filed a motion to correct an illegal sentence in the Sedgwick district court. He cited three reasons: (1) the Sedgwick County court imposed an ambiguous sentence when it ordered the sentence to run consecutive to the McPherson County case when no sentence had been imposed; (2) the Sedgwick County court was silent at the revocation hearing whether the sentence would run concurrently or consecutively; and (3) the Sedgwick County court at the original sentencing hearing did not cite the specific case number of the McPherson County case. Carlson based his argument on State v. Bell, 6 Kan.App.2d 573, 631 P.2d 254 (1981), and State v. McNatt, No. 59,046, –––Kan. ––––, 761 P.2d 795, 1986 Kan. Lexis 430 (Kan.App. December 5, 1986) (unpublished opinion).
The State challenged Carlson's motion to correct an illegal sentence with three points of its own. First, the State argued that Carlson was sentenced in the McPherson County case and the fact that he was on probation at the time did not mean that his underlying sentence had not been imposed. Second, the Sedgwick County court expressly stated at the sentencing hearing that the Sedgwick County case would run consecutive to the McPherson County case. Third, the State argued that the imposition of the original sentence at the revocation hearing was an imposition of the sentence rendered at the time of sentencing in the Sedgwick County case.
After a motions hearing on October 5, 2010, the district court denied Carlson's motion to correct an illegal sentence. The motions minute sheet stated: “ State v. McNatt factually distinguishable as [a Missouri Court] had suspended imposition of [McNatt's] sentence.” Carlson appeals.
K.S.A. 21–4608(c) provides, applicable to the case at bar, that any person who is convicted and sentenced for a crime committed while on probation for a felony shall serve the sentence consecutive to the term or terms under which the person was on probation. Carlson argues that he had no sentence in the McPherson County case yet because he was on probation and therefore his Sedgwick County sentence was illegal. In State v. Reed, 237 Kan. 685, Syl. ¶ 2, 703 P.2d 756 (1985), the court set forth the elementary point that a prior sentence must be in existence in order for consecutive sentences to even be a possibility:
“Under K.S.A.1984 Supp. 21–4608, in order for a trial court to impose a consecutive sentence, there must be a prior sentence in existence at the time of the subsequent sentencing. A trial court has no authority to direct a sentence to run consecutively to a nonexisting sentence which might thereafter be imposed in a pending case.”
In Bell, the court held that a trial court has no authority to order a sentence to run consecutive to a sentence on a sentence which has not yet been imposed and which may thereafter be imposed in a pending case. Bell was convicted of attempted burglary in 1980. At that time, he was on parole from a sentence imposed in 1978, but was also a “defendant in at least one other case then pending.” 6 Kan.App.2d at 573. The trial court ordered that Bell's sentence ‘ “run consecutive to any parole violation and consecutive to any sentence which may be imposed upon the defendant in any pending case.’ “ 6 Kan.App. at 573, 51 P. 583. The Bell court held that under K.S.A.1980 Supp. 21–4608(2), the sentencing court had discretion to order Bell's sentence to run consecutive to the parole sentence, but also held that “a sentence may not follow or succeed without interval or break that which does not exist. The court in this case had no authority to direct the sentence here imposed run consecutive to a sentence which might thereafter be imposed in a case then pending.” 6 Kan.App.2d at 574, 631 P.2d 254. Stated simply, Bell holds that to impose a consecutive sentence there must be an actual sentence then existing to which the consecutive sentence in the later case is applied.
Carlson relies primarily on the unpublished decision from this court in McNatt where the defendant was convicted in Missouri of felony theft but was granted a suspended imposition of sentence and was serving a 2–year probation. After McNatt committed felony theft in Johnson County, Kansas, the district court discussed the issue of whether the Kansas court was required to impose a sentence to run consecutive to any future sentence which might thereafter be imposed in the Missouri case. The sentencing court ordered McNatt's Kansas sentence to be served concurrent with any sentence imposed by the Missouri court. Citing Bell and Reed, the McNatt court affirmed and held that because there was no prior sentence in existence in the Missouri case, the district court had no authority to impose a sentence to run consecutive to a sentence that might thereafter be imposed by the Missouri court resulting from a violation of McNatt's probation in Missouri. 1986 Kan. LEXIS 430, at *3.
McNatt is an unpublished Court of Appeals case and carries no precedential weight. It is unclear why the court in McNatt did not address clearly contrary law established by the Kansas Supreme Court in State v. Kerley, 236 Kan. 863, 865, 696 P.2d 975 (1985), and State v. Ashley, 236 Kan. 551, 553, 693 P.2d 1168 (1985). Carlson acknowledges Ashley and does not attempt to distinguish it. Ashley involved the interpretation of K.S.A.1983 Supp. 21–4608(3) in a case where Ashley had been convicted of giving a worthless check and theft in August 1983. She was given a 5–year suspended sentence in both cases. In September 1983, while under the terms of the suspended sentence, she committed the burglary and theft in the reported case. In November 1983, her suspended sentence in the prior cases was revoked and she was ordered to serve a sentence of 2–10 years for the prior convictions. In January 1984, Ashley pled guilty to the burglary and theft charges, and the court imposed a 3– to 10–year sentence on each count, to run concurrent with each other and concurrent with the sentences imposed in the prior case. The Ashley court distinguished Bell and held that a suspended sentence is included within the meaning of “probation” in K.S.A.1983 Supp. 21–4608(3). The court reversed and remanded the case for imposition of consecutive sentences. 236 Kan. at 553–54, 693 P.2d 1168.
The court in Kerley cited Ashley in finding it was uncontroverted that in Kerley's prior aggravated burglary case the court had suspended the imposition of sentence and released the defendant under supervision. 236 Kan. at 865, 696 P.2d 975. The subsequent murder occurred while Kerley was on that suspended sentence. The court held: “It was, therefore, mandatory that the sentence herein run consecutively with the sentence imposed on the prior conviction upon revocation of suspension. See State v. Ashley, 236 Kan. 551, 693 P.2d 1168,” and reversed the trial court's imposition of concurrent sentences. 236 Kan. at 865, 696 P.2d 975.
Under Ashley and Kerley, the district court did not err in ordering Carlson to serve consecutive sentences. Carlson's prior McPherson County conviction was in existence and he was sentenced to 12 months' imprisonment, but granted probation of 24 months. Ordering Carlson's Sedgwick County sentence to run consecutive to the McPherson County sentence was a legal sentencing disposition. The district court did not err in denying Carlson's motion to correct illegal sentence.
Affirmed.