State v. Donaldson
| Decision Date | 28 April 2006 |
| Docket Number | No. 92,531.,No. 92,530.,92,530.,92,531. |
| Parties | STATE of Kansas, Appellee, v. Ronald DONALDSON, Appellant. |
| Court | Kansas Court of Appeals |
Michelle Davis, of Kansas Appellate Defender Office, for appellant.
Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Phill Kline, attorney general, for appellee.
Before RULON, C.J., MARQUARDT and HILL, JJ.
Defendant Ronald Donaldson appeals the district court's denial of his motion to correct an illegal sentence, contending an incorrect criminal history score was applied to his sentences. We reverse and remand for further proceedings.
The defendant contends the district court improperly dismissed his motion to correct an illegal sentence, arguing the district court applied an incorrect criminal history score to calculate his sentences. The defendant was assigned a criminal history score of B due to his prior conviction for robbery, an adult person felony, and 3 convictions for omitting to provide for minor children, which were classified as adult person misdemeanors. The three prior misdemeanor convictions were then scored as an adult person felony under K.S.A.2005 Supp. 21-4711(a).
The State initially contends the district court lack jurisdiction to modify the defendant's sentence. Where a question of jurisdiction has been raised, this court must consider the claim, even if raised for the first time on appeal. See Rivera v. Cimarron Dairy, 267 Kan. 865, 868, 988 P.2d 235 (1999).
The State bases its jurisdiction argument on State v. Miller, 260 Kan. 892, Syl. ¶ 2, 926 P.2d 652 (1996), wherein our Supreme Court held:
"After a lawful sentence has been imposed under the Kansas Sentencing Guidelines Act (K.S.A. 21-4701 et seq.) for a crime committed on or after July 1, 1993, committing a defendant to the custody of the Secretary of Corrections, the sentencing court lacks jurisdiction: (1) to modify the sentence except to correct `arithmetic or clerical errors' pursuant to K.S.A. 21-4721(i); (2) to consider or reconsider departure from the presumptive sentence; or (3) to modify the sentence by reinstating a previously revoked probation."
The key to this holding is the term "lawful sentence." K.S.A. 22-3504(1) provides that a court may correct an illegal sentence at any time. An illegal sentence is a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in the character or the term of the punishment authorized, or a sentence which is ambiguous with respect to the time and manner in which it is to be served. State v. Barnes, 278 Kan. 121, 123-24, 92 P.3d 578 (2004) (citing State v. Duke, 263 Kan. 193, 194, 946 P.2d 1375 [1997]).
State v. Lakey, 22 Kan.App.2d 585, 586, 920 P.2d 470 (1996).
By definition, an illegal sentence encompasses a sentence to which the district court assigned an incorrect criminal history to a criminal defendant. Therefore, the district court possessed jurisdiction to consider the defendant's motion to correct an illegal sentence, and this court possesses jurisdiction to consider a timely appeal from the denial of that motion.
The State further contends that the defendant is barred from challenging his sentence because he stipulated to his criminal history score at sentencing. A criminal defendant who stipulates to a criminal history score cannot challenge the use of the criminal history score to calculate the sentence because its use has been invited by the defendant's stipulation. See State v. McBride, 23 Kan.App.2d 302, 304, 930 P.2d 618 (1996).
In response, the defendant claims the right to waive a criminal history score objection is reserved to a defendant. He argues in this appeal that his counsel only acknowledged that the presentence investigation (PSI) report was correct and that the defendant's criminal history was properly scored in the context of a departure argument. He contends the district court never asked the defendant about his criminal history score. Therefore, the defendant claims he did not invite the error in his criminal history score by stipulation.
In State v. Vandervort, 276 Kan. 164, 72 P.3d 925 (2003), the Kansas Supreme Court considered a similar claim. Vandervort's PSI report erroneously listed 2 Virginia convictions as person felonies rather than nonperson felonies, resulting in a criminal history score of B rather than C. Defense counsel apparently had reviewed the PSI report prior to the sentencing hearing but had been given an amended PSI report with the changes highlighted just prior to the hearing. Defense counsel stipulated to the amended PSI report.
Relying upon the absence of any oral stipulation by Vandervort and the lack of any reasonable opportunity for Vandervort to review the amended PSI report, the Kansas Supreme Court ruled that K.S.A. 21-4721(e) provided authority to consider the merits of Vandervort's claim, despite any apparent stipulation by defense counsel. 276 Kan. at 177, 72 P.3d 925.
Vandervort is distinguishable on its facts. K.S.A.2005 Supp. 21-4715(c) places an affirmative duty upon a criminal defendant to file a written objection to any error in the proposed criminal history worksheet, specifying the exact nature of the alleged error. In the present case, the defendant received the PSI report well before the sentencing hearing and, presumably, reviewed the PSI report with his counsel. While the district court did not specifically accept an oral stipulation from the defendant at sentencing, the court did specifically list each crime charged, the applicable criminal history score to be applied, and applicable sentencing range before asking the defendant whether he was aware of any legal reason that sentence should not be imposed. Defense counsel answered for the defendant in the negative.
Generally, a criminal defendant is bound by the tactical decisions of counsel made after proper consultation with the client. See State v. Arrocha, 30 Kan.App.2d 120, 127, 39 P.3d 101, rev. denied 273 Kan. 1037 (2002) (); State v. Thomas, 21 Kan.App.2d 504, 507, 900 P.2d 874 (1995) (). The defendant was present during sentencing; his silence is equivalent to an endorsement of his counsel's actions during the hearing.
Nevertheless, the invited error rationale is not applicable when the erroneous information at the heart of a stipulation is within the knowledge of the court, the prosecutor, and defense counsel, but not the defendant. As the defendant notes in this appeal, the stipulation at issue is not to the factual existence of his prior convictions but to the classification of those prior convictions.
Essentially, the error raised by the defendant in his motion to correct an illegal sentence and in this appeal involves the application of law. As such, no party can properly stipulate to an incorrect application of the law. See Bright v. LSI Corp., 254 Kan. 853, 859, 869 P.2d 686 (1994). Therefore, the defendant's failure to object to his criminal history score, as required by K.S.A.2005 Supp. 21-4715(c), merely prevents him from challenging the factual basis for the criminal history classification applied in this case.
The classification of prior out-of-state convictions for criminal history purposes is governed by statute. K.S.A.2005 Supp. 21-4711(e) provides, in pertinent part:
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