State v. Reed, 76454
| Decision Date | 14 March 1997 |
| Docket Number | No. 76454,76454 |
| Citation | 23 Kan.App.2d 661,934 P.2d 157 |
| Parties | STATE of Kansas, Appellee, v. Walter A. REED, Sr., Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. K.S.A. 22-3504(1) provides that an illegal sentence may be challenged at any time. Whether a criminal sentence is illegal is a question of law.
2. When imposing consecutive sentences in multiple conviction cases, the court is required to impose a base sentence for the primary crime, using the total criminal history score, and then impose a nonbase sentence, using the criminal history I column of the sentencing grid.
3. Misdemeanor convictions are not covered under either the 1993 or 1994 version of K.S.A. 21-4720(b)(4). Consequently, a defendant may be sentenced to consecutive terms for any multiple misdemeanor convictions, in addition to the sentence imposed under 21-4720(b)(4) for any multiple felony convictions.
Thomas Jacquinot, Special Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant.
David Lowden, Assistant District Attorney, Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, for appellee.
Before GREEN, P.J., and GERNON and ROYSE, JJ.
Walter A. Reed, Sr., contends on appeal that the sentences imposed on him are illegal under the Kansas Sentencing Guidelines Act (KSGA).
Reed was convicted of two felony and three misdemeanor counts of contributing to a child's misconduct or deprivation. Reed was originally sentenced to consecutive terms of 1 to 5 years' imprisonment for each felony count and 1 year for each misdemeanor count, for a controlling term of 5 to 13 years.
Reed subsequently filed a motion to convert his pre-guidelines sentence to a guidelines sentence. After hearings, the court sentenced Reed to 11 months' imprisonment on each felony count, the maximum sentence within the presumptive range for the 8-G nondrug grid block. The court also sentenced Reed to the maximum term of 1 year for each of the misdemeanor convictions. The court ordered all of the sentences to run consecutive to one another, resulting in a controlling term of 58 months.
K.S.A. 22-3504(1) provides that an illegal sentence may be challenged at any time. Whether a criminal sentence is illegal is a question of law. Accordingly, this court has unlimited review. See State v. Tolliver, 22 Kan.App.2d 374, 375-76, 916 P.2d 725 (1996).
When imposing consecutive sentences in multiple conviction cases, the court is required to impose a base sentence for the primary crime, using the total criminal history score, and then impose a nonbase sentence, using the criminal history I column of the sentencing grid. See State v. Riley, 259 Kan. 774, 778-79, 915 P.2d 774 (1996); State v. Bowen, 20 Kan.App.2d 576, 577, 890 P.2d 374 (1995).
The conversion provisions of the KSGA are mandatory. State v. Gonzales, 255 Kan. 243, 250, 874 P.2d 612 (1994). In Bowen, we held that a judge's failure to follow K.S.A.1993 Supp. 21-4720 when converting a multiple conviction case created an illegal sentence. 20 Kan.App.2d at 578, 890 P.2d 374.
The State concedes that Reed's felony sentences are illegal. Under K.S.A.1993 Supp. 21-4720(b), only one felony conviction may have a full criminal history score applied. The other felony convictions should have a criminal history score of I. Therefore, this matter must be remanded for the trial court to determine a base sentence and a nonbase sentence.
The next issue is whether 21-4720(b)(4) applies to misdemeanor cases. K.S.A.1993 Supp. 21-4720(b)(4), which was in effect when Reed was originally sentenced, states in pertinent part that "[t]he total sentence assigned for a current conviction event cannot exceed twice the base sentence." This subsection was amended by the legislature in 1994, and that version states:
(Emphasis added.) K.S.A.1994 Supp. 21-4720(b)(4).
Determining which version applies to Reed's offenses hinges on whether the 1994 amendment should apply prospectively or retrospectively, which in...
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