State v. Hankins

• Decision Date: 22 April 2016
• Docket Number: No. 109,123.,109,123.
• Citation: 372 P.3d 1124,304 Kan. 226
• Parties: STATE of Kansas, Appellee, v. Anthony C. HANKINS, Appellant.
• Court: Kansas Supreme Court

304 Kan. 226

372 P.3d 1124

STATE of Kansas, Appellee,

v.Anthony C. HANKINS, Appellant.

No. 109,123.

Supreme Court of Kansas.

April 22, 2016.

Catherine A. Zigtema, of Law Office of Kate Zigtema LC, of Lenexa, argued the cause, and Sarah Morrison Rapelye, of The Law Office of Stacey J. Lett & Associates, LLC, of Leawood, was with her on the briefs for appellant.

Steven J. Obermeier, senior deputy district attorney, argued the cause, and Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

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

Anthony C. Hankins seeks review of the Court of Appeals decision to affirm the district court's denial of his motion to correct an illegal sentence. The motion claimed that the sentencing court used an incorrect criminal history score by including an Oklahoma deferred judgment as a prior conviction. The Court of Appeals majority held that the invited error doctrine barred Hankins' challenge to his criminal history score. In dicta, the majority also opined that Hankins would lose on the merits. State v. Hankins, 49 Kan.App.2d 971, 978, 319 P.3d 571 (2014). A concurring judge disagreed with the majority's holding on invited error but reluctantly agreed with the result on the merits because of prior Kansas Supreme Court dicta. We reverse both the Court of Appeals and the district court, remanding the matter for resentencing with the proper criminal history score.

Factual and Procedural Overview

In this case, Hankins pled guilty to multiple felony charges. His presentence investigation report (PSI) listed two prior misdemeanor convictions and one prior nonperson felony conviction. The felony was based on a possession of a firearm on school property charge in Oklahoma. That adult nonperson felony raised Hankins' criminal history score to a “G.” Hankins filed a motion for dispositional departure.

At the May 19, 2011, sentencing hearing, in response to the district court's inquiry as to whether the parties “had a chance to look” at the PSI, Hankins' counsel responded, “We have.” The court then recited that Hankins' presumptive sentencing ranges were between 68 and 77 months' imprisonment for the primary offense and 11 to 13 months for each of the three nonbase convictions. After that recitation, the district court inquired if “[a]nyone disagree[d] or ha[d] anything to add to those findings.” Defense counsel responded, “Judge, we do not disagree, and Defense has nothing to add with regards to those findings.” Defense counsel also denied knowing of any reason that sentencing could not proceed.

During the district court's consideration of Hankins' departure motion, defense counsel asked the court to consider that “[t]here was an issue about that conviction in Oklahoma, whether it had actually been dismissed or if it was part of a diversion or some juvenile issues. He didn't want to challenge that either, Judge, and decided, I've been dealing with this, I want to go forward today.”

The district court denied Hankins' departure motion and imposed a controlling sentence of 68 months' imprisonment.

Hankins filed a notice of appeal in June 2011 but subsequently voluntarily dismissed his appeal. On June 25, 2012, Hankins filed a pro se motion to correct an illegal sentence, and on October 16, 2012, his counsel filed a supplemental motion. Both motions asserted that Hankins' criminal history score should not have included the Oklahoma nonperson felony because Hankins received a deferred judgment for the Oklahoma crime, which did not constitute a conviction for criminal history scoring purposes.

The State responded that under Kansas law, the Oklahoma deferred judgment constitutes a conviction and, therefore, it was properly utilized in determining Hankins' criminal history. The district court held a hearing on the motion, at which the State asserted the additional claim that Hankins had waived his criminal history score challenge at sentencing by stipulating to the score reflected in the PSI.

The district court granted the defense request to submit additional written information on the Oklahoma proceeding, and the court subsequently issued a written ruling denying the motion to correct an illegal sentence. The district court first found that the defense attorney's comments during the sentencing hearing waived Hankins' right to challenge his criminal history score. The district court inferred that the defense intentionally chose not to challenge the Oklahoma conviction as a matter of strategy, so that it could argue the forbearance of a challenge as another reason for the court to grant a departure. The court acknowledged that while a party may not stipulate to an incorrect application of the law, Hankins was not challenging how the prior conviction was scored—rather, he was challenging the factual existence of the conviction.

Additionally, the district court ruled that even assuming Hankins could challenge his criminal history score, he had failed to prove his score was incorrectly calculated. Specifically, the district court determined that under Oklahoma's deferred judgment procedure, the defendant must plead guilty or nolo contendere to the charges and the court must accept the plea, thereby establishing that the defendant committed the Oklahoma offense. The court found that fact not only distinguishes the Oklahoma procedure from a Kansas diversion, but it also sufficiently establishes the defendant's guilt to be considered a conviction under the rationale of State v. Macias, 30 Kan.App.2d 79, 83, 39 P.3d 85, rev. denied 273 Kan. 1038 (2002).

After the district court ruled on the illegal sentence motion, Hankins filed a pro se amended supplemental motion of final response to correct an illegal sentence. The record does not indicate that the district court provided any additional ruling on that motion. Three days after that final pro se motion, Hankins' counsel filed a timely notice of appeal.

A panel of the Court of Appeals affirmed the district court's denial of Hankins' motion, albeit the panel members were not unanimous on the rationale for doing so. State v. Hankins, 49 Kan.App.2d 971, 319 P.3d 571 (2014). The majority applied the invited error doctrine to find that Hankins' criminal history score challenge was barred and further offered its opinion that Hankins' deferred judgment in Oklahoma established his guilt sufficiently to make it a conviction for Kansas sentencing purposes. 49 Kan.App.2d at 977–78, 319 P.3d 571. Judge Atcheson concurred in the result on the merits because he felt constrained to do so by Kansas Supreme Court precedent, but he rejected the majority's application of the invited error doctrine. 49 Kan.App.2d at 985–86, 992–93, 319 P.3d 571 (Atcheson, J., concurring).

This court granted Hankins' petition for review. We begin with the panel majority's principal holding that the invited error doctrine precludes appellate review. After rejecting that invited error holding, we consider the merits and determine that a successfully completed Oklahoma deferred judgment is not to be counted as a conviction when calculating a Kansas criminal history score.

Invited Error Precluding Review of an Illegal Sentence

On appeal, Hankins proffers multiple reasons why the Court of Appeals majority erred by using the invited error rule to bar his illegal sentence claim. One argument adopts Judge Atcheson's position that the 2009 amendment to K.S.A. 21–4715(c) “effectively negates the invited error doctrine with respect to a defendant's criminal history and, thus, allows a defendant to challenge a legal mistake in his or her criminal history even after admitting to the mistaken history at sentencing.” 49 Kan.App.2d at 993, 319 P.3d 571 (Atcheson, J., concurring). Another argument asserts that the invited error doctrine is subject to exceptions, such as where the defendant does not personally agree with his or her criminal history score or when the stipulation involves an incorrect application of the law, and those exceptions apply in this case. A final argument attempts to make a due process claim, presumably based upon Judge Atcheson's observation that “Hankins probably has a constitutional argument of sufficient gravity to override any purported bar based on invited error.” 49 Kan.App.2d at 997, 319 P.3d 571 (Atcheson, J., concurring). We begin with the due process argument.

Standard of Review

Whether the doctrine of invited error applies presents a question of law, and appellate courts generally exercise unlimited review over questions of law. State v. Ruiz, 51 Kan.App.2d 212, 223, 343 P.3d 544 (2015).

Analysis

Hankins' constitutional argument is unavailing. He has litigated this matter as a motion to correct an illegal sentence under K.S.A. 22–3504 ; he previously voluntarily dismissed his direct appeal. This court has “ ‘repeatedly held that K.S.A. 22–3504(1) has very limited applicability.’ ” Makthepharak v. State, 298 Kan. 573, 581, 314 P.3d 876 (2013) (quoting State v. Edwards, 281 Kan. 1334, 1336, 135 P.3d 1251 [2006] ). The three types of illegal sentences that can be corrected any time through a K.S.A. 22–3504 motion are “[1] a sentence imposed by a court without jurisdiction, [2] a sentence which does not conform to the statutory provision, either in character or the term of the punishment authorized, or [3] a sentence which is ambiguous with regard to the time and manner in which it is to be served.” State v. LaBelle, 290 Kan. 529, Syl. ¶ 1, 231 P.3d 1065 (2010). A claim that a procedural bar to the appellate review of a sentence violates due process does not fit within the limited definition of an illegal sentence for K.S.A. 22–3504 purposes. Accordingly, Hankins' claim of a due process violation cannot be remedied in this proceeding.

In his concurrence below, Judge Atcheson recognized that a due process challenge is not properly presented in a motion to correct an illegal sentence, but he suggested that a pro se motion...