State v. Clark

• Decision Date: 14 May 2021
• Docket Number: No. 121,789,121,789
• Citation: 486 P.3d 591
• Parties: STATE of Kansas, Appellant, v. Sidney W. CLARK, Appellee.
• Court: Kansas Supreme Court

486 P.3d 591

STATE of Kansas, Appellant,

v.Sidney W. CLARK, Appellee.

No. 121,789

Supreme Court of Kansas.

Opinion filed May 14, 2021.

Thomas R. Stanton, district attorney, argued the cause, and Keith E. Schroeder, former district attorney, and Derek Schmidt, attorney general, were on the brief for appellant.

Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by Wall, J.:

Sidney W. Clark was originally sentenced in 2005. Years later, he filed a motion to correct an illegal sentence, arguing his prior out-of-state conviction was incorrectly classified as a person offense for criminal history purposes. The district court denied the motion. On Clark's appeal from this ruling, the Court of Appeals reversed based on State v. Wetrich , 307 Kan. 552, Syl. ¶ 3, 412 P.3d 984 (2018), and remanded for resentencing with Clark's prior conviction classified as a nonperson offense. State v. Clark , No. 119,076, 2019 WL 1746772 (Kan. App. 2019) (unpublished opinion) ( Clark I ).

Before the district court resentenced Clark on remand, a series of legal developments called into question the holding in Clark I . Nevertheless, the district court concluded it was bound by the mandate of Clark I and resentenced Clark accordingly. This time, the State appealed, arguing Clark's 2019 sentence was illegal and Clark should have been resentenced based on the law in effect in 2005. The Court of Appeals agreed. State v. Clark , No. 121,789, 2020 WL 1903820, at *3 (Kan. App. 2020) (unpublished opinion) ( Clark II ). We granted Clark's petition for review, which challenged the jurisdictional and substantive basis of the ruling in Clark II .

This appeal requires us to decide whether Kansas appellate courts have jurisdiction to hear a State's appeal challenging the legality of a sentence. If so, we must also decide whether Clark's sentence is controlled by the law in effect at the time of his original sentence in 2005 or the law in effect at the time of his resentencing in 2019.

Adhering to the doctrine of stare decisis, we follow State v. Scherzer , 254 Kan. 926, 929-30, 869 P.2d 729 (1994), which held K.S.A. 60-2101 and K.S.A. 22-3504 vest appellate courts with jurisdiction to hear a State's appeal challenging the legality of a sentence. Further, we hold the legality of Clark's sentence is determined by the law in effect at the time of his sentence in 2005, and neither the mandate rule nor the doctrine of constitutional avoidance alter this conclusion. Accordingly, we affirm the judgment of the Court of Appeals, vacate Clark's sentence, and remand to the district court for resentencing in accordance with this opinion.

FACTS AND PROCEDURAL BACKGROUND

In February 2005, Clark pled guilty to one count of aggravated criminal sodomy, a severity level 2 person felony, based on conduct that occurred in January 2004. At Clark's sentencing in June 2005, the district court determined his criminal history score was a B. This score was based in part on a 2000 Oklahoma conviction for placing bodily fluids on a government employee. The district court classified this conviction as a person felony and sentenced Clark to the aggravated term of 460 months in prison.

In 2017, Clark filed a pro se motion to correct an illegal sentence. He argued his Oklahoma conviction for placing bodily fluids on a government employee was not comparable to any Kansas offense. Clark identified the closest Kansas offense to be battery against a law enforcement officer, which criminalized intentional contact with another person when done in a rude, insulting, or angry manner. But Clark alleged his Oklahoma conviction stemmed from an incident in which he involuntarily spit on arresting officers after they used pepper spray on him and such accidental conduct would not have qualified as rude, insulting, or angry behavior under the Kansas statute. Thus, he claimed his Oklahoma conviction should have been classified as a nonperson felony because no Kansas offense was comparable to the Oklahoma offense of placing bodily fluids on a government employee.

The district court denied Clark's motion. The court explained that for the purposes of determining an offender's criminal history score, the out-of-state offense and the Kansas offense being compared need not be "identical with identical elements." Instead, the offenses need only be comparable. The district court concluded the Oklahoma offense of placing bodily fluids on a government employee was comparable to the Kansas offense of battery against a law enforcement officer. As a result, the district court ruled Clark's Oklahoma conviction was properly classified as a person felony.

The Court of Appeals reversed in Clark I . Applying Wetrich , the panel held the Oklahoma offense of placing bodily fluids on a government employee is not comparable to the Kansas offense of battery against a law enforcement officer because the elements of the Oklahoma offense are not identical to or narrower than the Kansas offense. Clark I , 2019 WL 1746772, at *2-5. Accordingly, the panel vacated Clark's sentence and remanded the case for resentencing with directions to recalculate Clark's criminal history score with his Oklahoma conviction classified as a nonperson felony. 2019 WL 1746772, at *6.

The State did not file a petition for review, and the Clark I mandate issued. On remand, a new presentence investigation (PSI) report classified Clark's Oklahoma conviction as a nonperson felony, lowering his criminal history score from B to C.

Resentencing was scheduled for July 2019. At that hearing, the district court acknowledged that recent legal developments had cast doubt on whether Clark should be resentenced in accordance with Wetrich . The district court continued the hearing so the parties could address the recent caselaw developments. Both parties filed written memoranda addressing the appropriate law for resentencing.

At a hearing on August 16, 2019, the district court found Clark had a criminal history score of C and sentenced him to the aggravated term of 216 months. The State objected, arguing that intervening caselaw since Clark I compelled the district court to resentence Clark in accordance with the law in effect in 2005; otherwise, Clark's sentence would be illegal. However, the district court ruled that it lacked authority to depart from the appellate court's mandate to resentence Clark with a criminal history score of C.

The State appealed. And in Clark II , the panel held the district court erred because Clark's 2005 sentence was legal when pronounced and subsequent changes in the law could not render it illegal and subject to correction under K.S.A. 2020 Supp. 22-3504. Thus, the panel concluded that Clark's Oklahoma conviction for placing bodily fluids on a government employee should be classified as a person offense. Clark II , 2020 WL 1903820, at *3. The panel also rejected Clark's argument that the district court was bound by the mandate in Clark I , reasoning that an intervening change in law created an exception to the mandate rule. Clark II , 2020 WL 1903820, at *4. The panel vacated Clark's 2019 sentence and remanded the case for resentencing. 2020 WL 1903820, at *5. Clark sought review from this court, which we granted.

ANALYSIS

Kansas Appellate Courts Have Jurisdiction Over a State's Appeal Challenging the Legality of a Sentence

Clark argues the State's appeal should be dismissed for lack of jurisdiction. He contends that a party's right to appeal derives solely from statute, and there is no statutory basis for the State to appeal from a district court's ruling on a motion to correct an illegal sentence.

Standard of Review and Relevant Legal Framework

"Whether appellate jurisdiction exists is a question of law over which this court has unlimited review. To the extent the court's inquiry requires statutory interpretation, this court also exercises unlimited review. [Citations omitted.]" State v. Garcia-Garcia , 309 Kan. 801, 806, 441 P.3d 52 (2019). While Clark raises this issue for the first time in his petition for review, "[a] jurisdictional question may be raised at any time and may also be raised sua sponte by the appellate court." 309 Kan. at 806, 441 P.3d 52.

In Kansas, "[a]ppellate jurisdiction is defined by statute; the right to appeal is neither a vested nor a constitutional right." Kansas Medical Mut. Ins. Co. v. Svaty , 291 Kan. 597, 609, 244 P.3d 642 (2010). The limits of appellate jurisdiction are imposed by the Legislature. State v. Berreth , 294 Kan. 98, 110, 273 P.3d 752 (2012). Accordingly, " ‘[an] appellate court has jurisdiction to entertain a State's appeal only if it is taken within time limitations and in the manner prescribed by the applicable statutes.’ " State v. Sales , 290 Kan. 130, 134, 224 P.3d 546 (2010). Therefore, as a general rule, appellate courts may exercise jurisdiction only when authorized to do so by statute.

Any analysis of an appellate court's jurisdiction begins with K.S.A. 60-2101, which vests appellate courts with jurisdiction to review the judgments of lowers courts. See State v. LaPointe , 305 Kan. 938, 942, 390 P.3d 7 (2017) ; Flores Rentals v. Flores , 283 Kan. 476, 481, 153 P.3d 523 (2007). The statute provides that "[t]he supreme court shall have jurisdiction to correct, modify, vacate or reverse any act, order or judgment of a district court or court of appeals in order to assure that any such act, order or judgment is just, legal and free of abuse." K.S.A. 60-2101(b). It also provides that "[i]n any case properly before it, the court of appeals shall have jurisdiction to" do the same. K.S.A. 60-2101(a).

K.S.A. 60-2101 also subjects certain criminal appeals to portions of the Code of Criminal Procedure. Specifically, "[a]ppeals from the district court to the court of appeals in criminal cases" and "[d]irect appeals from the district court to the supreme court in criminal cases shall be as prescribed by ...