State v. Moore
| Decision Date | 10 May 2019 |
| Docket Number | No. 117,275,117,275 |
| Citation | 441 P.3d 22 |
| Parties | STATE of Kansas, Appellee, v. Dominic J. MOORE, Appellant. |
| Court | Kansas Supreme Court |
Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, was on the brief for appellant.
Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
Dominic Moore challenges his resentencing by the district court after we vacated the original hard 50 life sentence for his premeditated first-degree murder conviction because the sentence was unconstitutional. State v. Moore , 302 Kan. 685, 357 P.3d 275 (2015). On remand, the district court imposed a hard 25 life sentence (lifetime sentence without the possibility of parole for 25 years) for that conviction. And, it changed the life sentence from concurrent with, to consecutive to, the sentences for the convictions for Moore's two on-grid crimes. For those crimes, the court also changed his two nonvacated sentences in length and sequence.
We conclude the district court could not resentence Moore's two nonvacated, on-grid sentences, i.e., in length of months. Nor could that court change them from running concurrent to consecutive—to each other and to the hard 25. So we vacate them and remand for resentencing. There, Moore's original 195-month and 155-month concurrent sentences for his second-degree murder and attempted first-degree murder convictions shall be reinstated. And they shall run concurrent with each other and his new hard 25 sentence for premeditated first-degree murder.
Dominic Moore and his codefendant, Cedric Warren, were tried together for the shooting deaths of Charles Ford and Larry LeDoux and attempted shooting of Brandon Ford during an attempted drug-house robbery. The jury convicted both Moore and Warren of (1) premeditated first-degree murder; (2) intentional second-degree murder; and (3) attempted premeditated first-degree murder. The district court imposed the hard 50 life sentence for the off-grid first-degree premeditated murder convictions for both Moore and Warren. For the other two crimes, the court imposed gridbox sentences. Moore had one prior felony conviction so his two gridbox sentences were 195 months for second-degree murder and 155 months for attempted premeditated first-degree murder. The court also ordered all three of Moore's sentences to run concurrent.
Because Warren did not have any prior convictions, his gridbox sentences were 155 months for second-degree murder and 155 months for attempted premeditated first-degree murder. The court also ordered all three of Warren's sentences to run concurrent. Both Moore and Warren appealed. This court affirmed their convictions but vacated the hard 50 sentences because of Alleyne v. United States , 570 U.S. 99, 111-17, 133 S. Ct. 2151, 186 L.Ed.2d 314 (2013). Moore , 302 Kan. 685, 357 P.3d 275 ; State v. Warren , 302 Kan. 601, 356 P.3d 396 (2015).
On remand, the State chose not to seek the hard 50 for the first-degree murder convictions, which would require impaneling a jury and presenting facts to support the requested sentence. Instead, the State chose to seek the hard 25, which the judge could constitutionally impose without a jury. Before resentencing, Moore filed a motion arguing that the court's jurisdiction to resentence him was limited to the vacated sentence only. Because the two on-grid sentences had not been vacated, he argued they were lawful and the court thus lacked jurisdiction to change them. As such, the on-grid sentences had to continue to run concurrent to each other and to the sentence the court imposed for the off-grid conviction. In the alternative, if the court held that it did have jurisdiction over the on-grid sentences, Moore requested downward durational departures.
The district court resentenced Moore and Warren together, imposing the hard 25 for both of them. Further, the court concluded it did have jurisdiction over the nonvacated sentences and accordingly modified both their duration and concurrent nature. For the second-degree murder conviction, the court granted Moore a downward durational departure to 150 months (34 months less than the mitigated sentence). For the attempted first-degree murder conviction, the court imposed 150 months (in-between the standard and mitigated gridbox sentences). Then, the court ordered that all three sentences be modified from being concurrent to consecutive.
The court made the same modifications to the duration and concurrent nature of Warren's sentences. Warren received a gridbox sentence of 150 months—reduced from the original sentence of 155 months—for each of the two on-grid convictions. As it had for Moore, the court ordered all three of Warren's sentences to be modified from concurrent to consecutive.
Our jurisdiction is under K.S.A. 2018 Supp. 22-3601(b)(3) (life sentence imposed).
Issue: The district court erred in resentencing Moore's two nonvacated on-grid sentences and ordering all three counts to run consecutive.
Moore argues that in his first direct appeal this court only vacated his hard 50 sentence for first-degree murder. Because we did not vacate his on-grid sentences for second-degree murder and...
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