State v. Morningstar

• Decision Date: 18 July 2014
• Docket Number: No. 103,433.,103,433.
• Citation: 299 Kan. 1236,329 P.3d 1093
• Parties: STATE of Kansas, Appellee, v. Gary Lee MORNINGSTAR, Jr., Appellant.
• Court: Kansas Supreme Court

299 Kan. 1236
329 P.3d 1093

STATE of Kansas, Appellee,
v.
Gary Lee MORNINGSTAR, Jr., Appellant.

No. 103,433.

Supreme Court of Kansas.

July 18, 2014.

[329 P.3d 1094]

Syllabus by the Court

1. The jurisdictional bar in K.S.A. 21–4721(c)(1) prohibiting review of presumptive sentences does not extend to appellate review of a district court's interpretation of its sentencing authority under the Kansas Sentencing Guidelines Act or an appellate court mandate.

2. Interpretation of an appellate court mandate and the determination whether the district court complied with it on remand are questions of law subject to de novo review.

3. Interpretation of sentencing statutes is a question of law subject to de novo review. An appellate court will not read into a statute something not readily found in its text.

4. A district court simultaneously sentencing multiple convictions generally has discretion to order the sentences to be served consecutively. See K.S.A. 21–4608(a); K.S.A. 21–4720(b).

5. When a term of imprisonment is vacated on appeal and remanded for resentencing, the district court's authority in setting the length of the new prison term includes determining on remand whether it will run consecutive to the defendant's other terms of imprisonment.

6. The Kansas Sentencing Guidelines Act permits a district court to order the sentence for the primary crime of conviction to run consecutive to a defendant's other sentences.

Elaine M. Esparza, of Harper, argued the cause, and Kerwin L. Spencer, of Wellington, was on the briefs for appellant, and Gary Lee Morningstar, Jr., appellant pro se, was on a supplemental brief.

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Matthew B. Metcalf, acting county attorney, argued the cause, and Evan C. Watson, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

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

This appeal concerns a consecutive sentence ordered after an appellate remand in a multiple-conviction case. See State v. Morningstar, 289 Kan. 488, 495, 213 P.3d 1045 (2009) ( Morningstar I ). The Court of Appeals dismissed the appeal because it determined it was without jurisdiction because the new sentence was within the presumptive range under the Kansas Sentencing Guidelines Act (KSGA). See State v. Morningstar, No. 103,433, –––Kan.App.2d ––––, 2011 WL 1878003, at *2 (Kan.App.2011) (unpublished opinion) ( Morningstar II ); see also K.S.A. 21–4721(c)(1) (no direct appeal jurisdiction over presumptive sentences). We granted review to consider the panel's jurisdictional analysis, as well as its determination that the district court acted properly.

We hold that the panel erred in dismissing the appeal because appellate jurisdiction exists to determine whether the district court had authority to impose the consecutive sentence, even if that sentence fell within the presumptive range. See State v. Warren, 297 Kan. 881, 882–85, 304 P.3d 1288 (2013) (appellate court may consider limited question whether district court properly interpreted sentencing statute). As to the merits, we affirm the district court because the KSGA permits a district court imposing a term of imprisonment upon resentencing to determine anew whether the prison term runs consecutive to a defendant's other sentences. We also hold that a district court may designate that the sentence for the primary crime of conviction runs consecutive to the defendant's other sentences under the KSGA's multiple-conviction sentencing statute.

Factual and Procedural Background

Gary L. Morningstar, Jr., was convicted of one count each of rape of a child under 14, aggravated battery, abuse of a child, and child endangerment. At his sentencing hearing, the district court imposed an off-grid hard 25 life sentence for the rape conviction as required by Jessica's Law. See K.S.A. 21–4643. The court also applied the statutory sentencing grid to impose term-of-years sentences for the remaining convictions. See K.S.A. 21–4704. In doing so, the court used Morningstar's full criminal history score to enhance the sentence for the aggravated battery conviction, which was the highest severity level grid crime. See K.S.A. 21–4720(b)(2)–(4). The district court then ordered the term-of-years sentences to run concurrent with each other and with the off-grid hard 25 life sentence for the rape conviction. See K.S.A. 21–4608(a); K.S.A. 21–4720(b).

In Morningstar I, this court affirmed Morningstar's convictions but vacated the off-grid rape sentence because the jury had not determined Morningstar's age, which was necessary to impose that sentence under K.S.A. 21–4643. In other words, Morningstar's off-grid sentence was not lawful. See 289 Kan. at 494–95, 213 P.3d 1045. We remanded for resentencing on the rape conviction “as a felony on the KSGA nondrug sentencing grid.” (Emphasis added.) 289 Kan. at 495, 213 P.3d 1045.

On remand, the parties recognized that imposing a grid sentence for rape also implicated Morningstar's aggravated battery sentence because the rape conviction became Morningstar's highest severity level grid offense. See K.S.A. 21–3502(c) (rape of child under 14 a severity level 1 felony). This meant the district court was required to apply Morningstar's full criminal history to the rape conviction, which in turn required resentencing for the aggravated battery conviction without applying a criminal history score. See K.S.A. 21–4720(b)(2), (3), (5); State v. Sims, 294 Kan. 821, 825, 280 P.3d 780 (2012) (sentence illegal when, e.g., it differs in character or term from that authorized by statute).

Given those KSGA requirements, the district court sentenced Morningstar to 186 months' imprisonment for rape based on the appropriate grid box given his criminal history score. It also sentenced Morningstar to

[329 P.3d 1096]

43 months' imprisonment for aggravated battery applying no criminal history score. It then ordered the rape sentence to run consecutive to the other sentences. As a practical matter, Morningstar is required to serve a total sentence of 229 months' imprisonment—the sum of the rape sentence and the aggravated battery sentence (which is the longest of Morningstar's concurrent sentences for aggravated battery, abuse of a child, and child endangerment).

Morningstar challenged whether the district court on remand could order the rape sentence to run consecutive to his other sentences. In an unpublished opinion, the Court of Appeals held the district court did not violate the Morningstar I mandate because the original rape sentence was necessarily nullified as a consequence of our decision to vacate it. The panel reasoned this allowed the district court to start over when resentencing on that offense under the KSGA. But after engaging in this analysis and conclusion, the panel then determined that Morningstar's sentence was not reviewable on appeal under K.S.A. 21–4721(c)(1) because it was within the presumptive sentence range. The panel held that Morningstar's new sentence was subject to K.S.A. 21–4721(c)(1) (prohibition of direct appeal jurisdiction over presumptive sentences). Morningstar II, 2011 WL 1878003, at *2.

Morningstar timely petitioned this court for review, which we granted under K.S.A. 20–3018(b), obtaining jurisdiction under K.S.A. 60–2101(b).

We must note Morningstar raised other issues in his petition for review and in a supplemental brief filed with this court that we do not reach because our review is limited to what Morningstar contends the panel wrongly decided. See Supreme Court Rule 8.03(g)(1) (2013 Kan. Ct. R. Annot. 77). At oral argument, Morningstar agreed the only questions properly presented are the panel's jurisdictional analysis and his consecutive sentence challenge.

Dismissal for Lack of Jurisdiction

We address this issue first because without subject matter jurisdiction, a court cannot address a case's merits. See State v. Huerta, 291 Kan. 831, 840–41, 247 P.3d 1043 (2011) (“If subject matter jurisdiction is in question, that issue needs to be resolved first. The merits come second.”).

Kansas appellate courts have jurisdiction to “correct, modify, vacate or reverse any act, order, or judgment of a district court to assure that any such act, order or judgment is just, legal and free of abuse.” K.S.A. 60–2101(a), (b). Under the KSGA, appellate courts lack jurisdiction over presumptive sentences. K.S.A. 21–4721(c)(1). But this prohibition does not extend to appellate review of a district court's interpretation of its sentencing authority under the KSGA. See Warren, 297 Kan. at 885, 304 P.3d 1288 (Court of Appeals had jurisdiction, despite sentence within presumptive range, to review claim that district court erroneously believed it did not possess authority to impose downward departure).

Morningstar's consecutive sentencing challenge concerns not merely the ultimate sentence imposed but the district court's authority to impose it. This is not a challenge to a presumptive sentence precluded by K.S.A. 21–4721(c)(1). The panel erred when it dismissed Morningstar's appeal for lack of jurisdiction. Accordingly, we consider the merits of the challenge to his newly imposed consecutive sentence.

Imposition of Consecutive Sentence

Morningstar asserts three reasons why the district court could not run the rape sentence consecutive to his other sentences: (1) Morningstar I did not permit the district court to impose consecutive sentences on remand; (2) there was no statutory authority for the district court to reconsider on remand its original decision to run Morningstar's sentences concurrent with one another; and (3) the sentence for a defendant's primary crime of conviction cannot run consecutive to a defendant's other sentences. We disagree with each argument.

The Morningstar I mandate

Interpretation of an appellate court mandate and the determination of whether

[329 P.3d 1097]

the district court complied with it on remand are both questions of law subject to de novo review. See State v. Guder, 293 Kan....