Opinion
Nos. 106,048 106,049.
2012-08-3
STATE of Kansas, Appellee, v. Patrick H. PRIDE, Appellant.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge. Charles A. O'Hara, of O'Hara & O'Hara, LLC, of Wichita, for appellant. David Lowden, chief attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge.
Charles A. O'Hara, of O'Hara & O'Hara, LLC, of Wichita, for appellant. David Lowden, chief attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., McANANY, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This appeal raises the following legal question. When sentences in two separate cases are being entered at the same hearing, may the sentence in the first case heard be ordered to be served consecutive to the sentence in the second case which was not yet in existence, but was later entered at the same hearing?
We hold that it cannot and, consequently, vacate the sentence in the first case and remand it for resentencing.
Factual and Legal Background
The record presented to us covers both Sedgwick County District Court Nos. 10 CR 282 and 10 CR 472. In No. 10 CR 282, Patrick H. Pride was charged with burglary, a severity level 7 nondrug grid, nonperson felony pursuant to K.S.A. 21–3715(b) and theft, a class A nonperson misdemeanor pursuant to K.S.A. 21–3701(a)(l), (b)(5).
In No. 10 CR 472, Pride was first charged with rape, an off-grid person felony pursuant to K.S.A. 21–3502(a)(2) and aggravated criminal sodomy, an off-grid person felony pursuant to K.S.A. 21–3506(a)(l).
Pride was represented by the same attorney in both cases. Plea negotiations resulted in Pride entering into an acknowledgment of rights and entry of plea which had attached thereto a plea agreement which covered both No. 10 CR 282 and No. 10 CR 472 but noted the cases were “(NOT CONSOLIDATED).” The plea agreement, in applicable part, stated:
“1. Defendant agrees to enter a plea of Guilty to the following count(s):
10CR282
Count 1: K.S.A. 21–3715(b), Burglary, Severity Level 7, Non–Person Felony.
Count 2: K.S.A. 21–3701(a)(l)(b)(5) Theft, Class A, Non–Person Misdemeanor.
10CR472
Count 1: K.S.A. 21–3511(a), Aggravated Indecent Solicitation of a Child, Severity Level
5, Person Felony. (As Amended)
Count 2: Dismissed
“2. In return for Defendant's successful plea of Guilty as set forth in paragraph 1 the following recommendations will be made:
a. The State will recommend the low number for both felony counts and a 12 month sentence on the sole misdemeanor count.
b. The State will recommend the Court follow the presumption, which is incarceration.
c. The Defendant acknowledges his duty to register as an offender pursuant to the Kansas Offender Registration Act, K.S.A. 22–4901.
d. The State will recommend the counts in 10CR282 run concurrently to each other but the above mentioned cases shall run consecutively to each other and any other case.
e. The Defendant is free to argue for an alternative disposition .”
Under the agreement in both cases, Pride entered pleas of guilty to the burglary, theft, and aggravated indecent solicitation of a child charges as above set forth. After a full and complete hearing of both cases in a single proceeding, the district court accepted the pleas and found Pride guilty of burglary, theft, and aggravated indecent solicitation of a child.
Prior to sentencing, a single comprehensive motion for downward dispositional departure was filed by Pride in Nos. 10 CR 282 and 10 CR 472.
Both cases were considered in a single sentencing hearing. The departure motion was first presented, fully argued by Pride's attorney and the State, but denied by the sentencing court with a finding “there is no substantial or compelling reasons to deviate from the presumed imposition.”
The court then proceeded to sentence Pride in both cases. The State, pursuant to the plea agreement, recommended the sentences in the cases “run consecutive to each other.”
After imposing a 30–month sentence on count 1 in No. 10 CR 282 and a 12–month sentence in county jail on count 2 in No. 10 CR 282, the court ordered these sentences to run concurrently with each other for a total term of incarceration of 30 months. The court then said: “This sentence will run consecutive to 10 CR 472.”
After comments relating to the right to appeal, expungements, fingerprinting, photograph, prohibition from carrying a firearm, and obligation to submit specimens of blood and saliva, the court immediately proceeded to the sentence in No. 10 CR 472.
After imposing a 114–month sentence in No. 10 CR 472, the district court said: “I will order this sentence run consecutive to 10CR282.”
The journal entry of judgment for No. 10 CR 282 does not mention No. 10 CR 472. However, the journal entry of judgment for No. 10 CR 472 states its sentence was consecutive to the sentence in No. 10 CR 282.
Pride filed a notice of appeal from his sentences in both cases.
Was the Sentence Imposed in No. 10 CR 282 Illegal?
Pride argues the sentence in No. 10 CR 282 was illegal “because a sentence cannot be ordered consecutive to a sentence that has not yet been pronounced.” The State argues “the district court's initial statement about consecutive sentences was superfluous and unnecessary” which we can simply vacate.
We first point out that although Pride's argument implicates the sentence in No. 10 CR 472, and he filed a separate appeal in that case, he directly on appeal contests only the sentence in No. 10 CR 282. No argument is made by Pride as to the validity of his sentence in No. 10 CR 472, and under our rule that an issue not briefed by the appellant is deemed waived and abandoned, State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011), Pride's sentence in No. 10 CR 472 is deemed a final and binding sentence.
We then turn to Pride's argument that he received an illegal sentence in No. 10 CR 282. Our standard of review is as was set forth in State v. LaBelle, 290 Kan. 529, 532, 231 P.3d 1065 (2010):
“ ‘The question of whether a sentence is illegal is a question of law over which this court has unlimited review. An illegal sentence is a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in character or the term of the punishment authorized, or a sentence which is ambiguous with regard to the time and manner in which it is to be served.’ Deal v. State, 286 Kan. 528, Syl. ¶ 1, 186 P.3d 735 (2008).”
The statutory authority for sentencing in situations like the two cases before us is K.S.A. 21–4608(a) which in applicable part states:
“When separate sentences of imprisonment for different crimes are imposed on a defendant on the same date ... such sentences shall run concurrently or consecutively as the court directs.”
See State v. LaGrange, 21 Kan.App.2d 477, 478, 484–85, 901 P .2d 44,rev. denied 258 Kan. 861 (1995) (applying K.S.A. 21–4608[a] to sentences in separate cases imposed the same date).
Pride's primary argument of illegality of the 10 CR 282 sentence is that it is ambiguous because it cannot be consecutive to something that has not yet occurred. Further, when the sentence was announced from the bench in No. 10 CR 282, Pride did not know his actual sentence.
The State observes “that the journal entries of judgment, which are sent to the Secretary of Corrections, already correctly indicate that the 114–month sentence is running consecutively to the 30–month sentence.” But, the “oral pronouncement of a sentence in the defendant's presence controls over the subsequent written journal entry if there is a conflict between the two, since allowing the journal entry to control would effectively allow the defendant to be sentenced in absentia.” State v. Arrocha, 42 Kan.App.2d 796, Syl. ¶ 2, 217 P.3d 467 (2009).
It is interesting to note that since the sentence in No. 10 CR 282 was ordered to run consecutive to the sentence in No. 10 CR 472 and the sentence in No. 10 CR 472 was ordered to run consecutive to the sentence in No. 10 CR 282, each was consecutive to the other which seems to be an impossibility making the sentence in the first case not only ambiguous, but illegal as well.
There are two appellate Kansas cases which are quite analogous to our fact situation. The defendant in State v. Reed, 237 Kan. 685, 703 P.2d 756 (1985), was charged in No. 82 CR 2031 and while out on bond, committed more crimes and was charged in No. 83 CR 1638. The primary appellate issue was whether Reed was required to be sentenced consecutively under K.S.A.1984 Supp. 21–4608(4) (the Supreme Court held he was).
But, of more interest to us was the fact Reed “entered pleas of guilty to all charges in both cases on October 18, 1983.” 237 Kan. at 686. The Reed opinion notes that the trial court ordered the sentence in the prior case, No. 82 CR 2031, to run consecutive to the two sentences imposed in the later case, No. 83 CR 1638. Among Reed's appellate issues was that the trial court erred in making the sentences in the prior case run consecutive to the sentences imposed in the later case. Our Supreme Court agreed and stated:
“We adhere to the holding in State v. Bell, 6 Kan.App.2d 573, that, 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.” Reed, 237 Kan. at 690.
The Reed opinion held it was clearly error and reversed and remanded to the trial court with directions to make the sentence in No. 83 CR 1638 run consecutive to the sentence in No. 82 CR 2031 and not the other way around as ordered by the trial court. 237 Kan. at 691.
In State v. Bell, 6 Kan.App.2d 573, 631 P.2d 254 (1981), we held it was error for the trial court in sentencing Bell for a term to “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.2d at 573.
The Bell opinion made the following statements which are applicable to our case:
“By definition, the term ‘consecutive sentences' means sentences ‘following in a train, succeeding one another in a regular order, with an uninterrupted course of succession, and having no interval or break.’ 21 Am.Jur.2d, Criminal Law § 547. A sentence should be definite and certain, and not dependent upon any contingency or condition. It should be stated with sufficient certainty to permit its proper execution. 21 Am.Jur.2d, Criminal Law § 534.
“... However, 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 consecutively to a sentence which might thereafter be imposed in a case then pending.” 6 Kan.App.2d at 574.
Based on both Reed and Bell, we hold that since the sentence in No. 10 CR 472 did not exist when Pride was sentenced in No. 10 CR 282, the district court acted illegally and without authority to make the sentence in No. 10 CR 282 consecutive to that subsequently entered in No. 10 CR 472.
The State's argument that we should merely excise the “superfluous and unnecessary” language from the sentence in No. 10 CR 282 is without merit.
The language of K.S.A. 22–3504 relating to correction of sentence, after noting an illegal sentence may be corrected at any time, states: “The defendant shall have a right to a hearing, after reasonable notice to be fixed by the court, to be personally present and to have the assistance of counsel in any proceeding for the correction of an illegal sentence.” This language could not be clearer. It requires a hearing, reasonable notice, and the presence of the defendant with assistance of counsel.
Moreover, as our Supreme Court said in LaBelle, despite the possibility of the same sentence being entered upon remand the court held it could not affirm the existing sentence “because on remand the district court may make other findings and impose a different sentence. Moreover, our affirming on this basis would be akin to sentencing in absentia. See K.S.A. 22–3405(1) (defendant in felony case shall be present at imposition of sentence).” 290 Kan. at 538–39.
In summary, the sentence in No. 10 CR 282 is vacated and this case is remanded to the district court for resentencing.
The sentence in No. 10 CR 472 is affirmed and is deemed a final and binding sentence upon Pride.