State v. King
| Decision Date | 19 March 2021 |
| Docket Number | No. 122,708,122,708 |
| Citation | 482 P.3d 1174 (Table) |
| Court | Kansas Court of Appeals |
| Parties | STATE of Kansas, Appellee, v. Jacob W. KING, Appellant. |
James M. Latta, of Kansas Appellate Defender Office, for appellant.
Douglas A. Matthews, assistant county attorney, M. Levi Morris, county attorney, and Derek Schmidt, attorney general, for appellee.
Before Green, P.J., Malone and Warner, JJ.
Jacob King appeals the district court's denial of his motion to correct an illegal sentence, arguing his sentence is illegal in two respects. He asserts that the court modified his sentence in the current case when it altered his sentence in a different case, but it did not pronounce his modified sentence from the bench. And he claims the court erred when it revoked his probation in late 2018 without following certain statutory procedures, asserting that this revocation resulted in an illegal sentence. We are not persuaded by either argument and thus affirm the district court's ruling.
The case before us originated in October 2017, when the State charged King with possession of methamphetamine and possession of drug paraphernalia. At the time, King was serving probation for a 2014 conviction for theft and a 2016 conviction for burglary of a motor vehicle, both felonies. King pleaded guilty to the methamphetamine charge, and the State dismissed the paraphernalia charge.
Before his sentencing hearing in May 2018, the State brought charges against King in two new cases for multiple misdemeanors, including possession of stolen property and possession of marijuana and drug paraphernalia. The district court resolved all these matters during the May 2018 sentencing hearing.
In October 2018, King violated the terms of his probation after he used methamphetamine, failed to report to a community corrections meeting, and was terminated from his employment. King admitted to these violations at a hearing the next month. As a result, the district court revoked his probation in all four cases, finding it could bypass the graduated-sanctions framework in the current felony case because King had received a departure sentence. The court also modified King's misdemeanor sentence in the 2018 case, ordering that the jail sentence run concurrent with (not consecutive to) his felony prison sentences. This modification resulted in a controlling sentence of 54 months' imprisonment. King did not appeal.
Beginning in January 2019, King began filing pro se letters and motions challenging various aspects of his methamphetamine conviction and corresponding sentence. Relevant to this appeal, King filed a motion to correct an illegal sentence, claiming the court had miscalculated his jail time credits. He also filed a motion to withdraw his plea, claiming the possession of methamphetamine and drug paraphernalia charges were multiplicitous; a motion for sentence reduction/modification, claiming his 54-month sentence was too long; and a motion to suppress the methamphetamine the officers discovered. The district court summarily denied these motions in February 2020.
King appeals the district court's denial of his motion to correct an illegal sentence, but he takes a different tack. Instead of continuing to pursue the questions regarding jail time credits he raised in his original pro se motion, King now claims that his sentence is illegal for two other reasons:
For the reasons we discuss in this opinion, we find neither argument persuasive.
A sentence is effective when the court pronounces it from the bench. Abasolo v. State , 284 Kan. 299, Syl. ¶ 3, 160 P.3d 471 (2007). A district court usually lacks jurisdiction to modify a legal sentence once that sentence is pronounced. State v. Hall , 298 Kan. 978, 983, 319 P.3d 506 (2014). But when a district court revokes a person's probation, it may order that person to serve "the sentence imposed, or any lesser sentence." K.S.A. 2017 Supp. 22-3716(c)(1)(E).
When the district court revoked King's probation in November 2018, it also modified his jail sentence for the misdemeanor stolen-property offense so that it ran concurrent with, not consecutive to, the prison sentences for his felony convictions. King argues that by modifying the misdemeanor sentence, the court also effectively modified the prison sentence for his methamphetamine conviction. This matters because if the court modified his sentence, it was required to pronounce the complete sentence for that conviction—including the term of postrelease supervision—at the hearing. Since the court did not do so, King argues he no longer has to serve postrelease supervision. See State v. Jones , 56 Kan. App. 2d 556, 564-66, 433 P.3d 193 (2018).
Though King did not raise this issue before the district court, a court may correct an illegal sentence at any time, even when that issue is raised for the first time on appeal. See K.S.A. 2020 Supp. 22-3504(a) ; State v. Sartin , 310 Kan. 367, Syl. ¶ 2, 446 P.3d 1068 (2019). A sentence is illegal when it (1) is imposed by a court without jurisdiction; (2) does not conform to the applicable statutory provision, either in character or punishment; or (3) is ambiguous with respect to the time and manner in which it is to be served. K.S.A. 2020 Supp. 22-3504(c)(1).
But contrary to King's assertions, the district court did not modify the sentence for King's methamphetamine conviction when it revoked his probation. The court merely ordered that King serve his underlying sentence for that crime. The fact that the court modified a different sentence (for misdemeanor possession of stolen property) in a different case at the same hearing does not change this reality.
King argues that this court's decisions in Jones and State v. Bishop , No. 119,961, 2019 WL 6973428 (Kan. App. 2019) (unpublished opinion), compel a different result. But we disagree. As a starting point, we observe that we are not bound to follow Jones or Bishop , as they are horizontal precedents. See Kansas v. Fleming , 308 Kan. 689, 706, 423 P.3d 506 (2018). But more importantly for purposes of our analysis, those decisions are narrow and do not stand for the broad positions King asserts.
In Jones , we held that when a district court modifies a sentence by causing it to run concurrently when it previously ran consecutively, then it must also announce the postrelease-supervision term. 56 Kan. App. 2d at 563-64. If a court fails to announce this term, then it may not later order a supervision term in the journal entry, as the sentence has already been pronounced. 56 Kan. App. 2d at 565 ; see also State v. Thomas , No. 122,518, 2020 WL 6930601, at *2 (Kan. App. 2020) (unpublished opinion) (). Jones is inapposite to King's argument as the sentence in the case before us—the sentence for his methamphetamine conviction—was not modified when the district court revoked his probation.
Bishop involved a specific application of Jones . In that case, the court modified Bishop's sentences after it revoked his probation, noting in the journal entry that the sentences in question were " ‘modifie[d] ... to run concurrently with’ " sentences in three other cases. Bishop , 2019 WL 6973428, at *5. This court concluded that because the district court had expressly modified these sentences, it was required to also state a term of postrelease supervision, which it had not done. 2019 WL 6973428, at *5. Again, however, Bishop only illustrates what must occur if a court modifies a defendant's sentence—which the court in King's case did not do for the sentence before us.
Here, the district court revoked King's probation and ordered him to serve his underlying 30-month prison term for his methamphetamine conviction. It did not modify that sentence. As a result, the 12-month term of postrelease supervision announced at King's original sentencing hearing remains in effect. The court did not impose an illegal sentence when it ordered him to serve his underlying sentence.
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