State v. Evans
Decision Date | 04 September 2020 |
Docket Number | No. 121,628,121,628 |
Citation | 469 P.3d 1290 (Table) |
Parties | STATE of Kansas, Appellee, v. Katie M. EVANS, Appellant. |
Court | Kansas Court of Appeals |
Kristen B. Patty, of Wichita, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Warner, P.J., Standridge and Gardner, JJ.
Katie M. Evans claims the district court failed to pronounce her misdemeanor sentence for escape from custody in open court. We agree. Because the district court failed to pronounce a complete sentence in open court, we void the sentence stated in the journal entry and remand this case to the district court for sentencing.
In 2017, under a plea agreement, Evans pleaded guilty to aggravated battery, a felony, in one case, and escape from custody, a misdemeanor, in another case. The parties agreed that Evans would serve 30 days in the county jail for escape from custody and this sentence would run consecutive to a 2015 case.
In 2019, the district court held a sentencing hearing for both cases. Evans and her counsel were both present at the sentencing hearing. The district court noted that it normally resolved sentences for misdemeanor escape from custody without a hearing, but, since they were having a hearing, it would hear argument. The State asserted that Evans had violated provisions in her plea agreement, so it was not bound by the 30 days stated in the plea agreement. Rather, it asked the district court to sentence Evans to 12 months in jail for her misdemeanor charge and run the sentence concurrent with her presumptive prison sentence for aggravated battery. Evans asked for credit for time served or the 30 days, as stated in the plea agreement.
The district court first sentenced Evans for her felony:
The district court did not say anything more about Evans' sentence for her misdemeanor escape from custody case. Still, the Journal Entry of Judgment stated the district court sentenced Evans to 12 months in the county jail for that crime.
Evans timely appeals.
"The court may correct an illegal sentence at any time while the defendant is serving such sentence." K.S.A. 2019 Supp. 22-3504(a). And a defendant may challenge a sentence even for the first time on appeal. State v. Fisher , 304 Kan. 263, 264, 373 P.3d 781 (2016). Whether a sentence is illegal under K.S.A. 22-3504 is a question of law over which the appellate court has unlimited review. State v. Lee , 304 Kan. 416, 417, 372 P.3d 415 (2016).
K.S.A. 2019 Supp. 22-3424(a) states: "The judgment shall be rendered and sentence imposed in open court." A sentence is effective when pronounced from the bench. State v. Tafoya , 304 Kan. 663, 666, 372 P.3d 1247 (2016).
State v. Hilt , 307 Kan. 112, 128 (2017).
Abasolo v. State , 284 Kan. 299, 304, 160 P.3d 471 (2007), found that including a term in the journal entry does not correct the court's error of failing to pronounce a...
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