State v. Hankins
| Decision Date | 21 February 2014 |
| Docket Number | No. 109,123.,109,123. |
| Citation | 319 P.3d 571,49 Kan.App.2d 971 |
| Parties | STATE of Kansas, Appellee, v. Anthony C. HANKINS, Appellant. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. Depending on the facts of the case, the doctrine of invited error can bar a defendant who forgoes his or her statutory opportunity to challenge his or her criminal history from subsequently complaining that his or her sentence was based on that unchallenged criminal history.
2. A prior Oklahoma deferred adjudication after a plea of guilty is counted as a prior conviction for calculating criminal history under the Kansas Sentencing Guidelines.
Sarah Morrison Rapelye, of The Law Office of Stacey J. Lett & Associates LLC, of Leawood, for appellant.
Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., ATCHESON, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.
Anthony C. Hankins appeals the district court's denial of his motion to correct an illegal sentence. He asserts that the district court incorrectly included in his criminal history an Oklahoma deferred sentence that was not actually a conviction. We affirm the rulings of the district court.
On July 2, 2010, Hankins, dressed for combat and wielding a rifle, burst into Saints Bar and Grill. He threatened to do bodily harm to his victims and robbed the business of around $1,500. The police stopped Hankins' vehicle as he was making his getaway. However, before they could take Hankins into custody, he sped away. Hankins then crashed his vehicle. The police arrested him and, amidst other evidence of the crime, found around $1,500 in cash in his vehicle. Saints had a security system that captured the robbery on video. The proprietor of Saints recognized the robber as being similar in appearance to the person he saw on the video security system burglarizing Saints a month before the robbery.
The State charged Hankins with four felonies. He attempted to negotiate a plea bargain that included some concessions for probation. When that failed, Hankins, contrary to the advice of his attorney, decided to plead guilty without benefit of a plea bargain. On March 25, 2011, Hankins pled guilty as charged to one count of aggravated robbery and two counts of aggravated assault for the offenses he committed on July 2, 2010, and one count of burglary for the offense of June 4, 2010. The presentence investigation (PSI) report listed three prior convictions: (1) possession of a firearm on school property, an adult nonperson felony; (2) giving a worthless check, an adult nonperson misdemeanor; and (3) possession of stolen property, an adult nonperson misdemeanor. The felony conviction was from Oklahoma. The PSI suggested that Hankins' criminal history score was G.
The district court sentenced Hankins on May 19, 2011. At the outset of the hearing, the district court recited the possible sentences indicated in the PSI report for each count. For the primary offense, aggravated robbery, a level 3 person felony, using a criminal history score of G, the aggravated sentence was 77 months, the standard sentence was 72 months, and the mitigated sentence was 68 months. For the three additional offenses, each a level 7 felony, applying a criminal history score of I, the applicable grid box provided a sentence range of 13 months, 12 months, or 11 months. The district court pointed out that this was a “presumptive prison” case.
The district court asked if anyone disagreed or had anything to add to the suggested sentencing terms from the PSI. Hankins' attorney stated that he did not disagree and had nothing to add to those findings. Hankins' attorney next responded that he knew of no reason not to proceed with sentencing. The district court then heard Hankins' comprehensive arguments for a dispositional departure to probation. Hankins' attorney argued the following points: Hankins entered his pleas as charged, without litigation, and contrary to advice of counsel, in order to reduce the burden on the State and the witnesses; he had obtained a job and was doing well; he was not a disciplinary problem at the residential center; he was remorseful about his criminal conduct and took full responsibility for it; he used a BB gun rather than an actual firearm during the robbery; and he had a son to support. Hankins' attorney suggested that, if the court granted probation, it could put “an enormous sentence over his head.” As further evidence of Hankins' commitment to minimize the State's burden, his attorney stated:
Hankins himself made a lengthy, articulate argument for probation. He emphasized that his job allowed him to use his college education. He read supporting letters from fraternity brothers and others to the court. Hankins did not contradict his attorney's waiver of a challenge to the Oklahoma item on the PSI.
The district court found that Hankins' reasons to depart from the presumption of imprisonment were not substantial and compelling. It sentenced Hankins to a term of 68 months in prison, the mitigated sentence, on the aggravated robbery count, and 12 months in prison on each of the other counts, with the sentences ordered to run concurrently.
On June 2, 2011, Hankins' filed his Notice of Appeal of the sentence, all judgments, and all adverse rulings entered by the district court. On October 27, 2011, because of the notice of voluntary dismissal filed by Hankins, this court dismissed that appeal.
On June 25, 2012, Hankins filed a pro se motion to correct an illegal sentence alleging that the Oklahoma conviction should not have been included in his criminal history. He argued that the case there was disposed of through a special Oklahoma process called “deferred sentencing” that did not result in a conviction. Through his attorney, Hankins filed a supplemental motion to correct an illegal sentence on October 16, 2012. The State filed its response to the motion on October 30, 2012. The State argued that Hankins waived his right to challenge the criminal history by stipulating to its accuracy. It contended that the doctrine of invited error precluded the relief Hankins requested. The State also addressed the substance of Hankins' criminal history argument. The State attached Hankins' Plea of Guilty and Summary of Facts form and the Sentencing After Previous Plea of Guilty form from the Oklahoma case. It argued that Hankins pled guilty to the offense so, under Kansas law, it constituted a conviction. The parties argued these positions at the motion hearing October 31, 2012. Interestingly, Hankins did not testify. The district court took the matters under advisement.
By written order entered November 26, 2012, the district court denied Hankins' motion. It found that Hankins had waived his right to challenge his criminal history because he stipulated to it in open court. Thus, he could not now complain about an error he had invited by the stipulation. Further, the district court found that Hankins made a strategic decision not to challenge his criminal history: “It is apparent that during sentencing the Defendant argued for leniency because he did not challenge his criminal history or add additional burdens to the prosecutor.” It also found that, even if the defendant were able to challenge his criminal history score, he had failed to prove that it was incorrect. The district court stated that deferred sentence offenses from other states can be included in a defendant's criminal history where, as here, the proceeding had established the defendant's guilt but simply deferred the imposition of punishment. Hankins filed a timely notice of appeal.
On appeal the parties offer the same arguments they made to the district court.
The court may correct an illegal sentence at any time. K.S.A. 22–3504(1). The question of whether a sentence is illegal is a question of law over which this court has unlimited review. State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013). A sentence is illegal if (1) it is imposed by a court without jurisdiction; (2) it does not conform to the applicable statutory provision, either in the character or the term of authorized punishment; or (3) it is ambiguous with respect to the time and manner in which it is to be served. 296 Kan. at 902, 295 P.3d 1039.
Hankins essentially concedes that he stipulated to his criminal history score at sentencing. He contends that his illegal sentence claim is not barred under the invited error doctrine. He argues that whether the disposition of his Oklahoma case should count as a conviction is one of law not subject to the invited error doctrine. He also argues that he could not stipulate to an incorrect application of law.
Where the parties have not stipulated to the criminal history, the district court has the power to correct an error in determining criminal history. State v. Russell, 36 Kan.App.2d 396, 399, 138 P.3d 1289,rev. denied 282 Kan. 795 (2006). However, where a defendant invites error by stipulating to his or her criminal history, he or she generally cannot obtain a correction of the sentence under K.S.A. 22–3504. State v. Vandervort, 276 Kan. 164, 175–76, 72 P.3d 925 (2003); Neal v. State, 25 Kan.App.2d 705, 706, 971 P.2d 748 (1998), rev. denied 266 Kan. 1109 (1999).
Hankins contends that State v. Donaldson, 35 Kan.App.2d 540, 133 P.3d 154 (2006), makes the invited error doctrine...
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...diversion agreement with a defendant. The defendant does not plead guilty as a condition of diversion. See State v. Hankins, 49 Kan.App.2d 971, 985, 319 P.3d 571 (2014), petition for rev. filed March 19, 2014. If the defendant successfully completes the terms of the diversion, he or she is ......
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