State v. McCurry, 90,221.

• Decision Date: 18 February 2005
• Docket Number: No. 90,221.,90,221.
• Citation: 279 Kan. 118,105 P.3d 1247
• Parties: STATE OF KANSAS, Appellee, v. JOHNNY McCURRY, JR., Appellant.
• Court: Kansas Supreme Court

279 Kan. 118

105 P.3d 1247

STATE OF KANSAS, Appellee, v. JOHNNY McCURRY, JR., Appellant.

No. 90,221.

Supreme Court of Kansas.

Opinion filed February 18, 2005.

Patrick H. Dunn, assistant appellate defender, argued the cause and was on the brief for appellant. Steven J. Obermeier, assistant district attorney, argued the cause, and Paul J. Morrison, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

DAVIS, J.

Johnny McCurry, Jr., was convicted of three counts of aggravated robbery and one count of kidnapping based on three separate cases which were consolidated for trial. The Court of Appeals reversed the kidnapping conviction and remanded for resentencing. State v. McCurry, No. 84,856, unpublished opinion filed November 16, 2001. The trial court imposed consecutive sentences; a 64-month sentence for each aggravated robbery for a controlling term of 192 months.

The Court of Appeals reversed, holding that the double rule in K.S.A. 2003 Supp. 21-4720(b)(4) (which has been unchanged since the crimes were committed in 1997) applied, limiting the defendant's sentence to 128 months. State v. McCurry, 32 Kan. App. 2d 806, 89 P.3d 928 (2004). We granted the State's petition for review and reverse the Court of Appeals' decision reversing the district court. We affirm the decision of the district court.

McCurry was charged with one count of aggravated robbery in Case No. 98CR1390, one count of aggravated robbery in Case No. 98CR1392, and one count each of aggravated robbery and kidnapping in Case No. 98CR1411, in connection with three robberies of two different Subway restaurants on three different dates in May 1998. The cases were consolidated for trial, and McCurry was convicted of all the charges and sentenced to a controlling term of 653 months' imprisonment. On direct appeal, the Court of Appeals reversed the kidnapping conviction, vacated the sentence, and remanded for resentencing. See State v. McCurry, No. 84,856, unpublished opinion filed November 16, 2001.

On remand, McCurry's criminal history score of G, coupled with his severity level 3 aggravated robbery convictions, placed him in the sentencing grid box range between 57 and 64 months for each conviction. The district court imposed consecutive 64-month sentences in each case for a controlling term of 192 months' imprisonment. McCurry filed a pro se motion to correct an illegal sentence, arguing that because his cases were consolidated for trial, they should be "considered multiple counts in a single complaint, information or indictment" and were subject to 21-4720(b)(4), which limits the length of a defendant's sentence to twice the base sentence (128 months). The district court denied the motion, reasoning:

"The double rule limit [in 21-4720(b)(4)] applies only to cases involving multiple convictions arising from multiple counts within an information, complaint, or indictment, not multiple convictions arising from separate cases . . . ." State v. Roderick, 259 Kan. 107, 114, 911 P.2d 159 (1996). K.S.A. 21-4720(b)(5) applies to nonbase sentences included in the same charging document as the base sentence. State v. Bolin, 266 Kan. 18, 23, 968 P.2d 1104 (1998).

"Although his cases were consolidated for trial, McCurry's robbery convictions arose from three separate charging documents. Therefore, K.S.A. 21-4720(b)'s double rule does not apply to his robbery sentences. In light of Roderick and Bolin, McCurry's argument that he was illegally sentenced is without merit."

The Court of Appeals reversed on appeal in State v. McCurry, 32 Kan. App. 2d 806, 89 P.3d 928 (2004). The Court of Appeals rejected the State's argument that the defendant was not charged and convicted on multiple counts in the same charging document but on separate cases consolidated for trial. The court concluded that "the State's argument does not give sufficient consideration to the fact that all three cases at issue could be and were consolidated for trial," 32 Kan. App. 2d at 808, and that State v. Taylor, 262 Kan. 471, 939 P.2d 904 (1997), "demonstrates the legislature's intent to apply a different rule for prior convictions when cases are actually consolidated for trial as opposed to pleading in several independent cases on the same date." 32 Kan. App. 2d at 808.

Identifying the consolidation of the three cases as the central issue, the Court quoted from Taylor, 262 Kan. at 479: "'When separate complaints are consolidated for trial, there is a single trial and the jury is to determine each charge on the evidence submitted on each count of the separate complaints.'" 32 Kan. App. 2d at 809. It further quoted State v. Boone, 220 Kan. 771, Syl. ¶ 1, 556 P.2d 880 (1976), for the following proposition: "'When two or more complaints, informations or indictments against a single defendant are tried together under K.S.A. 22-3203, the procedure should be the same as if the prosecution were under a single complaint, information or indictment.'" 32 Kan. App. 2d at 809. Concluding that the double rule should apply to cases consolidated for trial, the panel reasoned:

"The trial court consolidated all three cases based on K.S.A. 22-3203, which provides that the court can consolidate two or more complaints against a single defendant `if the crimes could have been joined in a single complaint, information or indictment.' McCurry cites State v. Aspinwall, 173 Kan. 699, 710, 252 P.2d 841 (1953), and the common definition of `consolidate' in arguing that the legal effect of the consolidation was the merger into a single complaint or information. The effect of consolidation does not technically merge all the cases into one single complaint or information, but the practical effect of the consolidation is exactly the same. To rule otherwise could lead to anomalous results. Counts that could, and possibly should, be charged together, could be charged individually and then consolidated just to avoid the legislatively mandated double rule." 32 Kan. App. 2d at 809-10.

The sole issue in this appeal is whether the sentencing limitations of the double rule found in 21-4720(b)(4) apply to separate complaints consolidated for trial. The interpretation of a statute is a question of law, and our review is unlimited. We are not bound by either the district court's or the Court of Appeals' interpretation of this statute. See State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).

The meaning of a particular statute is dependent upon the intent of the legislature. Our interpretation of the statute in this case is therefore guided by the following principles:

"Interpretation of a statute is a question of law. Under the fundamental rule of statutory construction, the intent of the legislature governs when that intent can be ascertained from the statute. When a statute is plain and unambiguous, an appellate court must give effect to the intention of the legislature, rather than determine what the law should or should not be. The general rule is that a criminal statute must be strictly construed in favor of the accused, which simply means that words are given their ordinary meaning. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. This rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent." (Emphasis added.) State v. Cox, 258 Kan. 557, Syl. ¶ 7, 908 P.2d 603 (1995).

The State argues that the Court of Appeals erred in finding the sentencing limitations of the double rule pursuant to 21-4720(b)(4) apply to separate complaints consolidated for trial. The State's petition for review raises several points of error in the panel's opinion: (1) disregard of the plain language of the double rule, (2) misapplication of Roderick, (3) reliance upon Boone dictum in the consolidation analysis, (4) grafting consolidation language which was used in K.S.A. 21-4710 on to K.S.A. 2003 Supp. 21-4720, and (5) reliance upon the inappropriate legal reason of "anomalous results" in disregard of a plain and unambiguous statute. Our examination of the interrelated arguments of the State convinces this court that the Court of Appeals failed to give consideration to the plain language of the statute.

K.S.A. 2003 Supp. 21-4720(b)(2) provides that in multiple conviction cases where consecutive sentences may be imposed, "[t]he sentencing judge must establish a base sentence for the primary crime. The primary crime is the crime with the highest crime severity level ranking." K.S.A. 2003 Supp. 21-4720(b)(4) sets forth the "double rule," which provides:

"The total prison sentence imposed in a case involving multiple convictions arising from multiple counts within an information, complaint or indictment cannot exceed twice the base sentence. This limit shall apply only to the total sentence, and it shall not be necessary to reduce the duration of any of the nonbase sentences imposed to be served consecutively to the base sentence." (Emphasis added.)

The plain language of 21-4720(b)(4) provides that the double rule is applicable to "multiple convictions arising from multiple counts within an information, complaint or indictment." (Emphasis added.) The use of the word "an" demonstrates that the convictions must arise under a single charging document. Review of the relevant case law reveals that this plain reading of 21-4720(b)(4) effects legislative intent.

Although this court has never determined whether this statute is applicable to cases consolidated for trial, it has interpreted this statute in other contexts. In State v. Roderick, 259 Kan. 107, 113-14, 911 P.2d 159 (1996), the defendant had pleaded guilty to multiple counts in different cases on the same date, and he argued that his situation should be treated as a "multiple conviction case" under K.S.A. 1994 Supp. 21-4720(b)(4)'s "double...