State v. Quested, 106,805.

• Citation: 302 Kan. 262,352 P.3d 553
• Decision Date: 26 June 2015
• Docket Number: 106,805.
• Parties: STATE of Kansas, Appellee, v. Joshua QUESTED, Appellant.
• Court: United States State Supreme Court of Kansas

302 Kan. 262

352 P.3d 553

STATE of Kansas, Appellee

v.Joshua QUESTED, Appellant.

106,805.

Supreme Court of Kansas.

June 26, 2015.

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Christina M. Trocheck, assistant county attorney, argued the cause, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

Opinion

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

Joshua Quested appeals, contending the sentencing judge imposed an illegal sentence by ordering the sentences in this Saline County case be served consecutive to a previously imposed Dickinson County sentence. He argues no Kansas statute explicitly authorizes consecutive sentences for convictions arising in separate cases prosecuted in different counties. Although the State does not dispute this assertion, it urges us to follow the 20–year–old holding in State v. Chronister, 21 Kan.App.2d 589, 903 P.2d 1345 (1995), which recognized the power of a sentencing judge to order that a sentence be served consecutive to a sentence previously imposed in a different county. We agree with this precedent, and we hold that Quested's sentences conformed to Kansas law and are not illegal. We, therefore, affirm his sentences.

Facts and Procedural Background

Pursuant to a plea agreement, Quested pleaded guilty in the Saline County District Court to nonresidential burglary and possession of stolen property in case number 07 CR 249. He also pleaded guilty to possession of marijuana and possession of stolen property in case number 07 CR 47. Under the terms of the plea agreement, Quested agreed that his sentences in Saline County would run consecutive to a yet-to-be-imposed sentence for another recent conviction in Dickinson County case number 07 CR 15. The Dickinson County crimes were factually related to the crimes in one of the Saline County cases.

After being convicted in the three cases, Quested first received his sentence in the Dickinson County District Court. The next day, Quested proceeded to sentencing for his Saline County convictions. The State, consistent with the plea agreement, requested that Quested's Saline County sentences run consecutive to the Dickinson County sentence imposed the previous day. The Saline County sentencing judge adopted this recommendation when imposing sentence. The judge suspended execution of the sentence, however, and granted Quested a dispositional departure to probation.

Nearly 1 year later, the judge revoked Quested's probation after Quested attempted to escape from Labette Correctional Conservation Camp. The judge ordered Quested to serve his underlying prison sentence. Quested then filed a motion to correct an illegal sentence, claiming that the sentencing judge had no statutory authority to make his Saline County sentences run consecutive to his Dickinson County sentence. After a hearing, the Saline County sentencing judge denied Quested's motion. Quested timely appealed to the Court of Appeals, which affirmed. We granted Quested's petition for review. See State v. Quested, No. 106,805, ––– Kan.App.2d ––––, 2012 WL 3000385, at *1–2 (Kan.App.2012) (unpublished opinion), rev. granted October 17, 2013.

Analysis

Issue: Did the sentencing judge have the authority to order Quested's Saline County sentences be served consecutive to Quested's previously imposed Dickinson County sentence?

1.1. Preservation

Initially, the State contends that we lack jurisdiction to review Quested's Saline County sentences because the judge imposed sentences Quested bargained for in his plea agreement. Under K.S.A.2014 Supp. 21–6820(c)(2), an “appellate court shall not review ... any sentence resulting from an agreement between the state and the defendant which the sentencing court approves on the record.”

While K.S.A.2014 Supp. 21–6820(c)(2) would appear to support the State's position, another statute—K.S.A. 22–3504(1) —provides that a “court may correct an illegal sentence at any time.” This court has reconciled the two statutes by holding that an appellate court has jurisdiction to correct an illegal sentence even if it was agreed to in a plea. See State v. Cullen, 275 Kan. 56, 60–61, 60 P.3d 933 (2003) ; cf. State v. Morningstar, 299 Kan. 1236, Syl. ¶ 1, 329 P.3d 1093 (2014) (appellate courts have jurisdiction to determine the authority to impose a consecutive sentence even when a defendant receives a presumptive sentence, which is generally not appealable). Quested invoked K.S.A. 22–3504(1) and its authorization to raise a legality challenge at any time by filing a motion to correct an illegal sentence and arguing his Saline County sentences do not conform to Kansas law. See State v. Sims, 294 Kan. 821, 825, 280 P.3d 780 (2012) (defining an “illegal sentence” to include one that fails to conform to law).

Hence, Quested's plea agreement does not waive his right to attack his sentence on the basis it was not authorized by statute.

1.2. Kansas' sentencing statutes and consecutive sentences

Quested's motion for illegal sentence and his appellate arguments focus on the lack of statutory authority empowering the Saline County sentencing judge to impose sentences consecutive to the Dickinson County sentence. He argues there is no statute addressing consecutive sentences under the circumstances of his case; i.e., when a sentence is imposed on different dates, in courts of different Kansas counties, for separate crimes arising from different charging documents. He notes that Kansas statutes address the issue of consecutive sentences in some circumstances, just not his. The State does not argue that any statute authorizes the sentencing judge's order. Instead, it relies on Chronister, 21 Kan.App.2d 589, 903 P.2d 1345, which served as the basis for the Court of Appeals' decision. Quested, 2012 WL 3000385, at *1–2.

As Quested suggests, K.S.A.2006 Supp. 21–4720 —a provision of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21–4701 et seq., which became effective in 1993—discusses consecutive sentencing but does not cover the circumstances of his case. K.S.A.2006 Supp. 21–4720 states:

“(a) The provisions of subsections (a), (b), (c), (d), (e) and (h) of K.S.A. 21–4608 and amendments thereto regarding multiple sentences shall apply to the sentencing of offenders for crimes committed on or after July 1, 1993, pursuant to the sentencing guidelines system as provided in this act. The mandatory consecutive requirements contained in subsections (c), (d) and (e) shall not apply if such application would result in a manifest injustice.

“(b) The sentencing judge shall otherwise have discretion to impose concurrent or consecutive sentences in multiple conviction cases. The sentencing judge shall state on the record if the sentence is to be served concurrently or consecutively.” (Emphasis added.) K.S.A.2006 Supp. 21–4720(b).

At first glance, the plain language of K.S.A.2006 Supp. 21–4720(b) appears to be a broad grant of discretion to impose consecutive sentences. But in lieu of a statutory definition for the phrase “multiple conviction cases,” this court—in a context different from that presented today—has held the term in K.S.A.2006 Supp. 21–4720(b) is solely a reference “to sentencing on multiple convictions from one charging document.” State v. Koehn, 266 Kan. 10, 17, 966 P.2d 63 (1998) ; State v. Roderick, 259 Kan. 107, 113–14, 911 P.2d 159 (1996). Moreover, that “definition applies for all provisions of K.S.A. 21–4720(b).” State v. Bolin, 266 Kan. 18, Syl. ¶ 2, 968 P.2d 1104 (1998). Because Quested's multiple convictions did not arise from a single charging document, the judicial construction of the term “multiple conviction cases” means that K.S.A.2006 Supp. 21–4720(b) did not provide the Saline County sentencing judge with the authority to order Quested to serve his Saline County sentences consecutive to his Dickinson County sentence.

The other subpart of this statute—K.S.A.2006 Supp. 21–4720(a) —refers back to several subsections of K.S.A. 21–4608, which was part of the 1969 codification of the criminal law. L. 1969, ch. 180, sec. 21–4608. Under K.S.A. 21–4608(a), a sentencing judge has discretion to impose consecutive sentences when sentencing a defendant on the same day for different crimes. This provision applied to Quested's two Saline County convictions but not to his Dickinson County sentence. Subsection (b) grants discretion for a consecutive sentence when a defendant commits a crime while on various forms of release for a prior misdemeanor conviction. Additionally, subsections (c), (d), and (e) mandate a consecutive sentence when a defendant commits a crime while either incarcerated or on some form of release for a prior felony conviction. See also K.S.A.2006 Supp. 21–4603d(f). But Quested did not commit a subsequent crime while incarcerated or on release; he committed additional crimes prior to being arrested for the first crimes. Thus, he is correct that subsections (b), (c), (d), and (e) do not apply to his case.

In addition, the State and Quested both accept that K.S.A. 21–4608(h) does not apply to his situation. This provision states:

“When a defendant is sentenced in a state court and is also under sentence from a federal court or other state court or is subject to sentence in a federal court or other state court for an offense committed prior to the defendant's sentence in a Kansas state court, the court may direct ... that such state sentences as are imposed may run concurrently with any federal or other state sentence imposed.” (Emphasis added.) K.S.A. 21–4608(h).

The Court of Appeals panel deciding Chronister interpreted this provision to apply only if the prior sentence had been imposed in the court of another state or a federal court. Chronister, 21 Kan.App.2d at 593, 903 P.2d 1345. Under this interpretation of K.S.A. 21–4608(h), no statutory provision would expressly apply in Quested's situation. The panel in this case did not analyze the...