State v. McCarley

• Decision Date: 07 November 2008
• Docket Number: No. 95,818.,95,818.
• Parties: STATE of Kansas, Appellant/Cross-appellee, v. Steven M. McCARLEY, Appellee/Cross-appellant.
• Court: Kansas Supreme Court

195 P.3d 230

STATE of Kansas, Appellant/Cross-appellee, v. Steven M. McCARLEY, Appellee/Cross-appellant.

No. 95,818.

Supreme Court of Kansas.

November 7, 2008.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Phill Kline, attorney general, were with him on the briefs for appellant/cross appellee.

Patrick H. Dunn, of the Kansas Appellate Defender Office, argued the cause and was on the briefs for appellee/cross appellant.

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

Steven M. McCarley was convicted by a jury of reckless aggravated battery, a severity level 5 person felony. The conviction, however, was erroneously classified as a severity level 8 person felony in the presentence investigation report. Because no one caught the error, the trial court sentenced McCarley to the appropriate grid sentence under the Kansas Sentencing Guidelines Act for a level 8 offense—23 months' imprisonment—rather than the level 5 offense—122 to 136 months' imprisonment.

When the State discovered the error, it filed a motion to correct an illegal sentence. When that motion was denied, the State appealed and McCarley cross-appealed. A split Court of Appeals rejected all allegations of error in State v. McCarley, 38 Kan.App.2d 165, 166 P.3d 418 (2007). This court granted the respective petitions and cross-petitions for review under K.S.A. 20-3018(b).

The issues on appeal, and this court's accompanying holdings, are as follows:

1. Did the trial court have jurisdiction to correct a purported illegal sentence when the illegality favored McCarley? Yes.

2. Did the trial court lack jurisdiction to convict McCarley of level 5 reckless aggravated battery because that crime was never charged in the complaint and purportedly is not a lesser included offense of intentional aggravated battery? No.

3. Did the trial court err when it failed to instruct the jury that McCarley's actions had to be the proximate cause of the victim's injuries to find him guilty of reckless aggravated battery? No.

Accordingly, we reverse the judgments of the Court of Appeals and trial court on issue 1 and remand to the trial court to correct McCarley's illegal sentence. We affirm their judgments on issues 2 and 3.

FACTS

The essential facts are not in dispute. Steven M. McCarley backed his pickup into Nick and Sonya Cosentino's car in a Wichita parking lot. When McCarley refused to provide the Cosentinos with his name or insurance information, Sonya left to call the police. As McCarley was backing out to leave, Sonya ran to place herself directly behind the pickup, and it bumped her in the chest. When McCarley started to pull forward, Nick jumped partway into the pickup cab and then fell out or was pushed.

McCarley was charged with two counts of aggravated battery, one against Sonya, and one against Nick. The jury also was instructed on lesser included offenses and, on count two involving Nick, was instructed on the elements of reckless aggravated battery, which required a finding that "McCarley recklessly caused great bodily harm or disfigurement to Nicola `Nick' Cosentino." This instruction thus described aggravated battery as contained in K.S.A. 21-3414(a)(2)(A), a severity level 5 person felony. The jury acquitted McCarley of the charges involving Sonya, but convicted him of reckless aggravated battery against Nick.

At sentencing, the presentence investigation (PSI) report incorrectly listed the conviction pursuant to K.S.A. 21-3414(a)(2)(B), reckless aggravated battery, but a severity level 8 person felony. Unlike the level 5 aggravated battery, which requires great bodily harm to be caused, the level 8 crime is defined as "recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm ... can be inflicted." (Emphasis added.) K.S.A. 21-3414(a)(2)(B). When the trial court inquired of counsel whether there was any question as to the severity level or criminal history shown in the PSI report, both counsel agreed that the report was correct. McCarley was then sentenced to 23 months' incarceration—an appropriate grid sentence under the Kansas Sentencing Guidelines Act, K.S.A. 21-4704, for a severity level 8 person felony with a criminal history score of A.

After time for appeal had expired, and approximately 34 days after sentencing, the State filed a motion to correct an illegal sentence under the authority of K.S.A. 22-3504. It argued that McCarley's sentence for a severity level 8 offense of aggravated battery under K.S.A. 21-3414(a)(2)(B) did not conform with the statutory provisions of a level 5 offense under K.S.A. 21-3414(a)(2)(A), the offense of conviction. It observed that those guidelines for the latter offense call for a sentence of 122 to 136 months. See K.S.A. 21-4704.

After a hearing, the trial court denied the motion, opining that it could not correct an illegal sentence if the correct sentence would be harsher than the original one imposed.

The State appealed and McCarley cross-appealed, arguing that the trial court lacked jurisdiction to convict him of the level 5 offense and that the court erred in failing to instruct the jury on proximate cause. The Court of Appeals affirmed McCarley's convictions and denied the cross-appeal. However, with Judge Knudson dissenting, it refused to remand to correct the sentence. McCarley, 38 Kan.App.2d 165, 166 P.3d 418.

ANALYSIS

Issue 1: District courts have jurisdiction to correct purported illegal sentences when the illegality favors the defendant.

McCarley generally adopts the position of the Court of Appeals majority opinion. The majority first held that the State had no right to appeal the denial of a motion to correct an illegal sentence under K.S.A. 21-4721(e)(3) (appellate court may review a claim that the sentencing court erred in ranking the crime severity level of the current crime). It correctly noted that the statute deals with appeals; neither party had preserved a direct appeal of the sentence. The majority ultimately allowed the appeal under K.S.A. 22-3602(b)(3), however, by construing the State's motion and argument as a question reserved. Included in the reserved question was whether the sentence was illegal. 38 Kan.App.2d at 171, 166 P.3d 418.

With this framework in mind, the Court of Appeals majority then held that the sentence was not illegal under K.S.A. 22-3504(1) for any of the three reasons recognized by case law. See, e.g., State v. Nash, 281 Kan. 600, Syl. ¶ 1, 133 P.3d 836 (2006). First, it was not imposed by a court without jurisdiction. Second, the sentence did not fail to conform with the offense of aggravated battery as to its character and term of punishment authorized. Third, the sentence was not ambiguous as to time or manner in which it was to be served. The majority further held that even if the sentence were illegal, the State had agreed to the severity level the doctrine of invited error therefore precluded any challenge. McCarley, 38 Kan. App.2d at 176-77, 166 P.3d 418.

Judge Knudson dissented, for reasons the State generally adopts on appeal to this court. He opined that because an illegal sentence was alleged, this court had jurisdiction to review under State v. Vanwey, 262 Kan. 524, Syl. ¶ 1, 941 P.2d 365 (1997), thereby rendering unnecessary the majority's characterization and discussion as a question reserved. He further opined that an illegal sentence had been imposed, suggesting that the trial court had no jurisdiction and expressly concluding that the sentence failed to conform to the one required for the conviction of record, i.e., level 5 aggravated battery. He contended that an illegal sentence may be corrected at any time; that the doctrine of invited error was inapplicable because the sentence was illegal; and that there was no evidence to support an agreement to circumvent the jury verdict or the requirements of law.

As discussed below, we specifically agree with the dissent's holding and generally with its rationale.

Our agreement is primarily based upon two cases of this court: Chambers v. State, 199 Kan. 483, 430 P.2d 241 (1967), and Vanwey, 262 Kan. 524, 941 P.2d 365. They establish, among other things, that this court clearly has jurisdiction to consider the matter of McCarley's purported illegal sentence and further that his sentence indeed is illegal because it was imposed by a trial court without jurisdiction. In other words, we conclude that this court has jurisdiction to conclude that the trial court had no jurisdiction.

In Chambers, this court addressed a fact pattern similar to that of the instant case: the trial court mistakenly imposed sentence on a crime for which the defendant was not convicted. There, the defendants pled guilty to robbery in the first degree. However, they were erroneously sentenced for burglary in the second degree: indeterminate sentences of 5-10 years. After the error was discovered, the defendants were brought back to the court for resentencing. The trial court set aside the sentences and resentenced for robbery: 10-21 years.

Defendant Chambers later brought a motion under K.S.A. 60-1507 attacking the validity of the second sentence. This court affirmed the trial court's denial of his motion and made short work of his argument:

"The plaintiff next argues that once the court had imposed a sentence against him it could not later resentence him. This contention is without merit. The first sentence was void, since the penalty imposed was that required by law for second-degree burglary, not [first-degree] robbery. Accordingly, it was the court's clear duty to set the original sentence aside and impose a valid sentence." (Emphasis added.) 199 Kan. at 485, 430 P.2d 241.

Thirty years after Chambers, this court in Vanwey dealt with a slightly different fact pattern. It provided a more complete framework than Chambers, however, for its analysis and holding-both of which are of use...