State v. Bolin

Decision Date30 October 1998
Docket NumberNos. 78078,78257,78258,s. 78078
Citation266 Kan. 18,968 P.2d 1104
PartiesSTATE of Kansas Appellee, v. Michael BOLIN, Appellant. STATE of Kansas, Appellee, v. Michael WOODWARD, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. K.S.A. 21-4720(b) sets the procedure for determining sentences to be imposed in "multiple conviction cases."

2. A multiple conviction case is a case involving sentencing on multiple convictions arising under a single charging document. The definition applies for all provisions of K.S.A. 21-4720(b).

3. The language in State v. Christensen, 23 Kan.App.2d 910, 937 P.2d 1239 (1997), that conflicts with Syllabus p 2 is disapproved.

4. K.S.A. 21-4720(b)(5) is held to apply to nonbase sentences included in the same charging document as the base sentence. All sections of K.S.A. 21-4720(b) must be construed together.

5. A defendant who commits crimes while released on bond is not on conditional release under K.S.A. 21-4603d. A district judge is not allowed to impose a prison term where presumptive nonimprisonment is provided for in the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq. absent a departure.

Lisa Nathanson, Assistant Appellate Defender, argued the cause, and Randall L. Hodgkinson, Assistant Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, were with her on the brief for appellant in No. 78078.

Julie A. McKenna, County Attorney, argued the cause, and Carla J. Stovall, Attorney General, was with her on the brief for appellee in No. 78078.

Lisa Nathanson, Assistant Appellate Defender, argued the cause, and James Brent Getty, Assistant Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, were with her on the briefs for appellant in Nos. 78257 and 78258.

Clinton B. Peterson, Assistant County Attorney, and Carla J. Stovall, Attorney General, were on the briefs for appellee in Nos. 78257 and 78258.

SIX, Justice:

These two consolidated cases require interpretation of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq.

Michael Bolin and Michael Woodward seek review of the Court of Appeals decisions affirming their sentences. Both cases concern the definition of a "multiple conviction case" under K.S.A. 21-4720(b). We granted both defendants' petitions for review to reconcile conflicting definitions of the term "multiple conviction case" under K.S.A. 21-4720(b). The conflict arises from two Court of Appeals decisions: State v. Bolin, 24 Kan.App.2d 882, 955 P.2d 130 (1998), and State v. Christensen, 23 Kan.App.2d 910, 937 P.2d 1239 (1997). Our jurisdiction is under K.S.A.

20-3018(b); Rule 8.03 (1997 Kan. Ct. R. Annot. 52).

We resolve the conflict by extending the holding of State v. Roderick, 259 Kan. 107, 911 P.2d 159 (1996), which addressed, in part, the questions raised by Bolin and Woodward. A multiple conviction case is a case involving multiple crimes arising under a single charging document. The definition applies for all provisions of K.S.A. 21-4720(b). Bolin is affirmed. We disapprove of the conflicting language in Christensen. Woodward is affirmed in part, reversed in part, and remanded.

FACTS
State v. Bolin

Bolin pled guilty to two counts of forgery (94 CRM 622). On the same date, and in the same court, he also pled guilty to three counts of vehicular burglary and one count of felony obstruction (94 CRM 938). Bolin committed the burglary and felony obstruction while he was on bond from his forgery charges. On October 24, 1994, he was sentenced in both cases. On the forgery counts, the district court found a crime severity level 8 offense and a category E criminal history. (References to "crime severity level" and to "criminal history" are from the KSGA, K.S.A. 21-4701 et seq.) The court imposed a presumptive 14-month concurrent sentence on each count. The court found that the offenses on the burglary and felony obstruction convictions were crime severity level 9 offenses and Bolin's criminal history score was E. The court believed that the sentence imposed in the burglary/obstruction case was a presumptive sentence under the KSGA. The forgery sentences were consecutive to the burglary/obstruction sentences.

Bolin filed a motion to correct an illegal sentence. He claimed that the district court had applied an incorrect sentencing range and had erroneously applied his full criminal history to his burglary/obstruction sentence. The district court agreed in part and reduced the controlling sentence to 10 months. However, the court reasoned that Bolin's full criminal history score of E was correctly applied to his sentence on all counts. Bolin appealed, arguing that his criminal history score for his nonbase crimes should have been calculated as I. He contends that his sentencing in two separate cases, on the same date, and in the same court, constituted a "multiple conviction case" under K.S.A. 21-4720(b)(5).

Bolin's arguments were rejected by the Court of Appeals. The Bolin panel reasoned that, under the rationale of Roderick, K.S.A. 21-4720(b)(5) applies only to "multiple counts within an (the same) information, complaint, or indictment." 24 Kan.App.2d at 885, 955 P.2d 130. The Court of Appeals noted it was mindful of a contrary decision in Christensen but stated: "[W]e do not agree with that decision as it pertains to the issue of whether and how K.S.A. 21-4720(b)(5) should be applied...." 24 Kan.App.2d at 886, 955 P.2d 130.

State v. Woodward

We turn now to Woodward, an unpublished Court of Appeals decision. Woodward pled guilty to one count of possession of marijuana, a crime severity level 4 drug felony (95 CR 262). The same date, he pled guilty to one count of driving while suspended, a crime severity level 9 nonperson felony (95 CR 282). August 25, 1995, the district court sentenced Woodward in both cases. In the marijuana case the district court found Woodward fell into drug grid box 4-E, a presumptive prison box, and imposed 20 months' imprisonment. In the driving while suspended case, the district court found Woodward fell into a presumptive nonprison box 9-E; however, it imposed a prison sentence (10 months, to run consecutive to the 20-month term imposed on the marijuana charge) because Woodward committed the offense while he was out on bond in the marijuana case. The district court imposed the prison term despite the fact the offense carried a presumptive nonimprisonment sentence.

Woodward appeals on two grounds. First, he argues that the district court erred by ordering prison time in a presumptive nonimprisonment case because of his "on bond" status. Second, relying on Christensen, he contends his was a "multiple conviction case" Addressing Woodward's first contention, the Court of Appeals held that the district court erred in sentencing Woodward to prison based solely on his being on bond. However, the Court of Appeals, relying on Christensen, 23 Kan.App.2d at 918, 937 P.2d 1239, reasoned that the district court was required to impose imprisonment on the second sentence under K.S.A. 21-4720(b)(6). The Woodward panel also held the district court had discretion to order the prison terms to run consecutively or concurrently, presumably under K.S.A. 21-4608(a). Because the record was unclear as to whether the district court exercised its discretion, the Court of Appeals remanded for that consideration only.

under K.S.A. 21-4720(b)(5) (he was sentenced in two different cases on the same date in the same court). According to Woodward, his correct criminal history score for his nonbase crime, driving while suspended, should have been I, not E.

As to Woodward's second contention, the panel held that his was not a "multiple conviction case" under 21-4720(b), applying Roderick, 259 Kan. 107, Syl. p 3, 911 P.2d 159.

DISCUSSION
Statutory and Case History

While K.S.A. 21-4720(b) sets the procedure for determining sentences to be imposed in "multiple conviction cases," the term "multiple conviction case" is not statutorily defined.

K.S.A. 21-4720(b) reads in part:

"(b) The sentencing judge shall otherwise have discretion to impose concurrent or consecutive sentences in multiple conviction case s.... In cases where consecutive sentences may be imposed by the sentencing judge, the following shall apply:

....

(2) The sentencing judge must establish a base sentence for the primary crime. The primary crime is the crime with the highest crime severity ranking....

(3) The base sentence is set using the total criminal history score assigned.

(4) The total prison sentence imposed in a case involving multiple convictions arising from multiple counts within an information, complaint or indictment cannot exceed twice the base sentence....

(5) Nonbase sentences will not have criminal history scores applied, as calculated in the criminal history I column of the grid, but base sentences will have the full criminal history score assigned.

(6) If the sentence for the primary crime is a prison term, the entire imprisonment term of the consecutive sentences will be served in prison." (Emphasis added.)

We first examined the question of what constitutes a "multiple conviction case" in Roderick, 259 Kan. 107, 911 P.2d 159. The Court of Appeals panels in Christensen and Bolin interpreted portions of Roderick differently. In Roderick, we were asked to decide whether the K.S.A. 21-4720(b)(4) "double rule" applied to sentencing cases involving multiple crimes arising in different charging documents ("The total prison sentence imposed in a case involving multiple convictions arising from multiple counts within an information ... cannot exceed twice the base sentence."). Answering "no," we reasoned that before July 1, 1994, K.S.A. 21-4703(c) defined the term " 'conviction event' " as " 'one or more felony convictions occurring on the same day and within a single court. These convictions may result from multiple counts within an information or from more than one information.' " 259 Kan. at 114, 911 P.2d...

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