State v. Davis

• Decision Date: 05 December 2014
• Docket Number: 110,733.,110,732
• Citation: 339 P.3d 412 (Table)
• Parties: STATE of Kansas, Appellee, v. Derrick D. DAVIS, Appellant.
• Court: Kansas Court of Appeals

339 P.3d 412 (Table)

STATE of Kansas, Appellee
v.
Derrick D. DAVIS, Appellant.

110,732
110,733.

Court of Appeals of Kansas.

Dec. 5, 2014.
Review Denied July 22, 2015.

Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant.

Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., McANANY, J., and BURGESS, S.J.

MEMORANDUM OPINION

PER CURIAM.

Twenty years after his convictions for nine counts of aggravated robbery, Derrick D. Davis now contends that he is serving an ambiguous sentence because the judge did not pronounce from the bench the specific commencement date for his sentence. The court did insert a specific sentence commencement date, December 3, 1991, in the sentencing journal entry. We agree with the district court—the records clearly show that Davis is not serving an illegal sentence and the district court properly dismissed his motion alleging an illegal sentence.

We give a briefcase history to establish context.

A jury convicted Davis of nine counts of aggravated robbery in two cases consolidated for trial. The court sentenced Davis to a term of 15 years to life on each of the nine counts, with three of the counts to run consecutive to one another. Davis' controlling sentence is 45 years to life. The journal entries indicated that the combined sentences would begin December 3, 1991.

Davis has availed himself of the appellate courts over the years. His convictions and sentences were affirmed on direct appeal. State v. Davis, 256 Kan. 1, 883 P.2d 735 (1994). The Supreme Court rejected Davis' assertion of various trial errors. In addition, the court considered his sentences and rejected his arguments that the district court: (1) failed to consider K.S.A. 21–4601 (Ensley 1988) and K.S.A. 21–4606 (Ensley 1988) in sentencing him; (2) erred in failing to modify his sentences; and (3) imposed a disparate sentence based on the sentences he was given compared to the sentences given to his codefendants. 256 Kan. at 25–35.

Then, in 2004, Davis filed a motion to correct an illegal sentence, alleging the trial judge acted vindictively and failed to properly consider all of the factors that had to be considered at that time concerning placement in a community corrections program. The district court denied that motion, and a panel of this court affirmed, holding that the issues raised had been previously considered and denied in his direct appeal. State v. Davis, No. 95,889, 2007 WL 570263, at * 1–2 (Kan.App.) (unpublished opinion), rev. denied 284 Kan. 947 (2007).

In 2012, Davis filed this motion to correct an illegal sentence, claiming: (1) The district court failed to conform his sentence to the requirements in K.S.A.1991 Supp. 21–4608 and K.S.A.1991 Supp. 21–4620, and (2) the sentence is ambiguous as to the time and manner in which it is to be served. Davis contended that the sentencing judge was inconsistent when he ordered consecutive sentences on three counts but...