State v. Huff, No. 89,037.
| Decision Date | 30 January 2004 |
| Docket Number | No. 89,037. |
| Citation | 83 P.3d 206,277 Kan. 195 |
| Parties | STATE OF KANSAS, Appellee, v. JACQULYN J. HUFF, Appellant. |
| Court | Kansas Supreme Court |
Steven R. Zinn, deputy appellate defender, argued the cause, and Paige A. Nichols, assistant appellant defender, was on the brief for appellant.
Debra S. Peterson, deputy district attorney, argued the cause, and Kristi L. Barton, assistant district attorney, Nola Foulston, district attorney, and Phill Kline, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
This case comes before this court on grant of the defendant Jacqulyn J. Huff's petition for review from a decision of the Court of Appeals affirming her sentence. State v. Huff, 31 Kan. App. 2d 717, 71 P.3d 1185 (2003). We granted review on the sole issue of whether statutory authority exists for the imposition of consecutive jail sentences for misdemeanor offenses.
The defendant assisted her husband in committing purse snatches in several grocery stores and retail parking lots. In one instance, her husband grabbed the victim's purse and got into a vehicle being driven by the defendant. The defendant drove off, dragging the victim who was still clinging to her purse. In another instance, her husband grabbed a victim's purse and ran to a waiting car with the defendant inside. The defendant's children were inside the vehicle during these incidents. The defendant subsequently assisted her husband in forging and cashing stolen checks from another purse snatch. The State charged the defendant with attempted aggravated robbery, felony possession of marijuana following a prior conviction, misdemeanor theft, and two counts of misdemeanor child endangerment. Pursuant to a plea agreement, the State amended the attempted aggravated robbery charge to attempted robbery and recommended probation and concurrent sentences with an underlying prison term of 16 months. The defendant pled guilty to the amended charge and the remaining four charges.
The trial court's sentence on the two felony crimes ran concurrently, resulting in a controlling prison term of 16 months. Over the defense's objection, the trial court imposed consecutive 12-month jail sentences on each of the three misdemeanor offenses, to run consecutive to the primary offense of attempted robbery. Probation was granted on the felony convictions with a postrelease supervision period set at 36 months instead of the recommended 24 months.
The defendant appealed her sentence to the Court of Appeals, arguing that the trial court did not have authority to impose consecutive jail sentences on her misdemeanor offenses and that if authority did exist, the court abused its discretion by imposing consecutive jail sentences on the misdemeanor offenses. The defendant also argued that her increased postrelease supervision period was an unconstitutional departure sentence under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001).
The Court of Appeals ruled that the trial court had statutory authority to impose consecutive imprisonment sentences on the misdemeanor offenses under K.S.A. 21-4608(a), that the trial court did not abuse its discretion by imposing consecutive jail sentences, and that the increased postrelease supervision term was not a departure under Apprendi or an appealable sentence under K.S.A. 2002 Supp. 21-4611(c)(5). Huff, 31 Kan. App. 2d at 719, 721, 723-24.
The Court of Appeals discussed K.S.A. 2002 Supp. 21-4720(b) and K.S.A. 21-4608(a), two statutes which provide the trial court with the authority to impose consecutive sentences. Relying on State v. Reed, 23 Kan. App. 2d 661, 934 P.2d 157,rev. denied 262 Kan. 967 (1997), the court concluded that K.S.A. 2002 Supp. 21-4720(b), which provides that "[t]he sentencing judge shall otherwise have discretion to impose concurrent or consecutive sentences in multiple conviction cases," applies only to felony sentences under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq.31 Kan. App. 2d at 719. The defendant does not take issue with this finding on appeal, and it appears to be correct under Reed and the Kansas Sentencing Guidelines.
In Reed, the Kansas Court of Appeals found that neither the 1993 version of K.S.A. 21-4720(b)(4), which provided that the total sentence assigned for the current conviction event could not exceed twice the base sentence, nor the 1994 version of the statute, which provided that the total prison sentence imposed in cases involving multiple convictions arising from multiple counts could not exceed twice the base sentence, applied to misdemeanor convictions. 23 Kan. App. 2d at 662-63.
The Reed court reasoned that "prison" is defined in K.S.A. 21-4703(r) as a facility operated by the Kansas Department of Corrections and "[s]ince sentences for misdemeanor convictions are served in county jails, those type of sentences cannot meet the definition of prison sentences under the KSGA." 23 Kan. App. 2d at 663. Consequently, Reed concluded that a defendant may be sentenced to consecutive misdemeanor convictions in addition to the sentence imposed under K.S.A. 21-4720(b)(4) for any multiple felony convictions. 23 Kan. App. 2d at 663.
K.S.A. 2002 Supp. 21-4720(b) governs the imposition of consecutive presumptive felony sentences. State v. Peterson, 22 Kan. App. 2d 572, 575, 920 P.2d 463,rev. denied 260 Kan. 1000 (1996). A presumptive sentence under the KSGA is the sentence provided in the grid block for an offender classified in that grid block by the combined effect of the crime severity ranking of the current crime of conviction and the offender's criminal history. K.S.A. 21-4703(q). The sentencing guidelines grid for drug and nondrug crimes is applied in felony cases. K.S.A. 2002 Supp. 21-4704(a); K.S.A. 2002 Supp. 21-4705(a). As such, the Court of Appeals correctly concluded that K.S.A. 2002 Supp. 21-4720(b) does not apply to misdemeanor cases.
However, the Court of Appeals did conclude that the authority to impose consecutive misdemeanor sentences lies in K.S.A. 21-4608(a), which provides in relevant part:
"When separate sentences of imprisonment for different crimes are imposed on a defendant on the same date, including sentences for crimes for which suspended sentences, probation or assignment to a community correctional services program have been revoked, such sentences shall run concurrently or consecutively as the court directs."
The Court of Appeals rejected the defendant's argument that K.S.A. 21-4608(a) does not apply to misdemeanors because the definition of "imprisonment" under K.S.A. 21-4703(m) does not include sentences that are served in a county jail. K.S.A. 21-4703(m) is defined as "imprisonment in a facility operated by the Kansas department of corrections." The Court of Appeals found that because K.S.A. 21-4703(m) is part of the KSGA, it only applies to KSGA sentences for felony convictions. The court concluded that K.S.A. 21-4608(a) was applicable to this case, reasoning:
The defendant argues that the trial court and the Court of Appeals imposed an illegal sentence because no statutory authority exists for the imposition of consecutive sentences for her multiple misdemeanor convictions.
An illegal sentence subject to correction 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. Cullen, 275 Kan. 56, 60, 60 P.3d 933 (2003). An illegal sentence may be corrected at any time. K.S.A. 22-3504. The determination of whether a criminal sentence is illegal is a question of law subject to unlimited review. State v. Harper, 275 Kan. 888, 889, 69 P.3d 1105 (2003).
The defendant argues that resolution of this case hinges on whether incarceration in the county jail constitutes imprisonment under Kansas law, specifically under K.S.A. 21-4608(a). She contends that the Court of Appeals failed to address the distinction between the use of the terms "confinement" and "imprisonment" in the statues authorizing the punishment for misdemeanor and felony offenses.
K.S.A. 21-4608(a) provides that "...
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