State v. Schulze

• Decision Date: 26 July 2019
• Docket Number: No. 119,184,119,184
• Citation: 447 P.3d 1026
• Parties: STATE of Kansas, Appellee, v. Dustin Elie SCHULZE, Appellant.
• Court: Kansas Court of Appeals

447 P.3d 1026

STATE of Kansas, Appellee,

v.Dustin Elie SCHULZE, Appellant.

No. 119,184

Court of Appeals of Kansas.

Opinion filed July 26, 2019

Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.

Brock R. Abbey, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.

Before Schroeder, P.J., Green and Powell, JJ.

Schroeder, J.:

Dustin E. Schulze appeals the district court's decision to approve the State's motion to correct an illegal sentence, which the State filed after discovering his original presentence investigation (PSI) report failed to contain all of his prior convictions. The district court originally sentenced Schulze based on a criminal history score of C. The amended PSI report had five more convictions, two of which were person misdemeanors. The new PSI report changed Schulze's criminal history score from a C to a B. The district court found it needed to resentence Schulze based on his new criminal history score. Schulze now argues his sentence was not illegal and the district court had no authority under these facts to resentence him. We agree with Schulze, finding his original sentence controls since it was based on the criminal history the State proved at the time of his original sentencing. Reversed and remanded with directions.

FACTS

After pleading no contest to felony theft, Schulze appeared for sentencing. His PSI report showed he had a criminal history score of C, listing 18 prior convictions. Schulze agreed with the PSI report and its finding he had a criminal history score of C, resulting in a sentence of presumptive probation. K.S.A. 2016 Supp. 21-6804(a). The State recommended Schulze be sentenced to prison, based on his criminal history score and the fact this crime occurred while he was on felony bond. The district court disagreed with the State's recommendation and sentenced Schulze to 12 months' imprisonment, suspended to serve 12 months on probation, to run consecutive to a 40-month prison sentence he was already serving in another case.

Shortly after the original sentencing, court services provided an amended PSI report to the district court, listing 23 prior convictions, including two person misdemeanors not included in the original report. The amended PSI combined the two newly discovered person misdemeanors with a person misdemeanor included in his original PSI report to aggregate the three person misdemeanors to a person felony. With the new aggregation, Schulze's criminal history score increased from a C to a B. K.S.A. 2017 Supp. 21-6811(a).

The district court informed the parties that court services had been given the wrong sentencing date and had not updated Schulze's PSI report in time for his original sentencing. The State then moved to correct an illegal sentence under K.S.A. 2017 Supp. 22-3504. It argued Schulze's sentence was illegal because it was based on a criminal history score that did not include all his prior convictions.

At the hearing, the district court granted the State's motion. The court held Schulze's sentence violated an applicable statutory provision requiring all of a defendant's prior convictions to be counted separately in his criminal history. The court also held,

"[T]he case law in Kansas is clear that the Court can correct an illegal sentence at any time, and that routinely happens, even without objection at the time of sentencing on appeal when it is in another light. For example, if a criminal history classification was improperly scored, no objection was made at sentencing, to the detriment of the defendant, the appellate courts simply send that back down for the district court to correct. This is the opposite of that situation in which the original criminal history omitted two misdemeanor offenses from a case which should have been included in the criminal history."

Based on the amended PSI report, Schulze's sentence changed to a presumptive prison sentence with a range of 13 to 15 months. K.S.A. 2016 Supp. 21-6804(a). Schulze moved for a dispositional departure. The district court granted the motion and resentenced Schulze to 14 months' imprisonment, but granted 12 months' probation to once again run consecutive to the other 40 month prison sentence he was serving in another case.

ANALYSIS

On appeal, Schulze contends his original sentence was legal and the district court erred in resentencing him. He points out the State failed to object to his criminal history at his original sentencing hearing. Because the State failed to challenge the existence or nonexistence of his prior convictions at the original sentencing, he argues the State does not get a second chance.

The State responds by arguing Schulze's original sentence was illegal because it was based on an inaccurate criminal history. The State further contends parties may not stipulate to an illegal sentence, and because courts may correct an illegal sentence at any time, the State asserts the district court did not err in resentencing Schulze.

Standard of review

Whether a sentence is illegal within the meaning of K.S.A. 2018 Supp. 22-3504 is a question of law over which the appellate court has unlimited review. State v. Jamerson , 309 Kan. 211, 214, 433 P.3d 698 (2019). "A sentence is illegal under K.S.A. 22-3504 when: (1) it is imposed by a court without jurisdiction; (2) it does not conform to the applicable statutory provisions, either in character or punishment; or (3) it is ambiguous with respect to the time and manner in which it is to be served. [Citation omitted.]" State v. Hayes , 307 Kan. 537, 538, 411 P.3d 1225 (2018).

The sentence when imposed was legal.

The district court found Schulze's sentence was illegal because it did not conform to K.S.A. 2017 Supp. 21-6810(c) and (d)(6). K.S.A. 2017 Supp. 21-6810(c) states "Except as otherwise provided, all convictions ... shall be counted separately in the offender's criminal history." K.S.A. 2017 Supp. 21-6810(d)(6) states "All person misdemeanors ... shall be considered and scored" when determining a defendant's criminal history score. The district court held Schulze's original criminal history score did not conform to these provisions because it did not include all of his prior person misdemeanors.

Even so, Schulze argues his original sentence was not illegal because the State did not object to his criminal history. He compares his case to State v. Oliver , 30 Kan. App. 2d 665, 46 P.3d 36 (2002). There, the district court found the defendant had a criminal history score of C. The State did not object to the criminal history score and told the court the defendant's municipal convictions could not be aggregated. The State later moved to correct an illegal sentence, arguing some of the defendant's municipal convictions should have been aggregated, resulting in a criminal history score of B. The district court granted the State's motion and resentenced the defendant.

On appeal, this court vacated the defendant's sentence and remanded to reinstate the original sentence. 30 Kan. App. 2d at 667-68, 46 P.3d 36. The Oliver court held: " ‘When the State agrees to a defendant's criminal history, even if the criminal history is incorrect, the sentence imposed based on that criminal history is not illegal because it is a proper sentence for the agreed upon grid block.’ " 30 Kan. App. 2d at 667, 46 P.3d 36 (quoting Neal v. State , 25 Kan. App. 2d 705, 705-06, 971 P.2d 748 [1998] ). The Oliver court also found:

"This court has repeatedly held that a sentence within the wrong sentencing grid block under the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq., is not an illegal sentence when the criminal history category was stipulated to by the parties. Neal , 25 Kan. App. 2d at 705 ; Thompson v. State , 25 Kan. App. 2d 659, 967 P.2d 361 (1998) ; State v. McBride , 23 Kan. App. 2d 302, 304, 930 P.2d 618 (1996) ; State v. Tolliver , 22 Kan. App. 2d 374, 380, 916 P.2d 725 (1996). The justification behind this rule is that one who invites error by his or her own acts cannot then complain or take advantage of it on appeal. Neal , 25 Kan. App. 2d at 706 ." Oliver , 30 Kan. App. 2d at 667 .

While Oliver weighs in Schulze's favor, it was decided over 17 years ago, and the invited error doctrine has changed. When Oliver was decided, some Kansas caselaw held the invited error rule prevented parties from challenging an illegal sentence on appeal if they had stipulated to or failed to object to the defendant's criminal history. For example, in State v. McBride , 23 Kan. App. 2d 302, Syl. ¶ 3, 930 P.2d 618 (1996), overruled by State v. Dickey , 301 Kan. 1018, 350 P.3d 1054 (2015), a panel of this court held "[a] defendant who invites error by stipulating to his or her criminal history cannot request a correction of sentence under K.S.A. 22-3504 after pronouncement of sentence." See also State v. Goeller , 276 Kan. 578, 585, 77 P.3d 1272 (2003), overruled by Dickey , 301 Kan. 1018, 350 P.3d 1054 ; State v. Vandervort , 276 Kan. 164, 175-76, 72 P.3d 925 (2003), overruled by Dickey , 301 Kan. 1018, 350 P.3d 1054. And Oliver relied on McBride in reaching its holding. Oliver , 30 Kan. App. 2d at 667, 46 P.3d 36.

But another line of cases distinguishes between a stipulation to the factual basis for the defendant's criminal history and a stipulation to its legal effect. In State v. Donaldson , 35 Kan. App. 2d 540, 544, 133 P.3d 154 (2006), a panel of this court held "no party can properly stipulate to an incorrect application of the law." As a result, "the defendant's failure to object to his criminal history score ... merely prevents him from challenging the factual basis for the criminal history classification." 35 Kan. App. 2d at 544, 133 P.3d 154.

Our Supreme Court reached the same conclusion in State v. Weber , 297 Kan. 805, 813-14, 304 P.3d 1262 (2013). There, the defendant challenged the district court's designation of his prior out-of-state conviction as a sexually violent crime to classify him as...