State v. Snow

• Decision Date: 14 November 2008
• Docket Number: No. 98,549.,98,549.
• Citation: 195 P.3d 282
• Parties: STATE of Kansas, Appellee, v. Richard R. SNOW, Appellant.
• Court: Kansas Court of Appeals

195 P.3d 282

STATE of Kansas, Appellee, v. Richard R. SNOW, Appellant.

No. 98,549.

Court of Appeals of Kansas.

November 14, 2008.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Steven J. Obermeier, assistant district attorney, Phill Kline, district attorney, and Stephen N. Six, attorney general, for appellee.

Before MALONE, P.J., ELLIOTT and MARQUARDT, JJ.

MALONE, J.

Richard R. Snow appeals his upward durational departure sentence. Snow was convicted by a jury of 15 felony counts of nonresidential burglary, theft, and criminal damage to property. The jury found aggravating factors supporting an upward durational departure, and the district court imposed a controlling sentence of 92 months' imprisonment. The Kansas Supreme Court affirmed Snow's convictions but remanded the case for resentencing because the total sentence exceeded the statutory maximum. State v. Snow, 282 Kan. 323, 342, 144 P.3d 729 (2006).

On remand, the district court again imposed a controlling sentence of 92 months' imprisonment, calculated in a manner different than the original sentence. In this appeal, Snow claims: (1) the Supreme Court lacked jurisdiction to remand the case for resentencing; (2) the district court's use of vague, nonstatutory aggravating factors to increase Snow's sentence violated his due process rights; and (3) the district court erred by considering nonamenability to probation as an aggravating factor to justify an upward durational departure.

The facts supporting Snow's convictions are not relevant to this sentencing appeal. In the earlier decision, our Supreme Court summarized the procedural history surrounding Snow's initial sentencing:

"After the jury returned its verdict, the district court held a separate sentencing hearing for the jury to determine the existence of aggravating factors that could enhance Snow's sentence. The jury found beyond a reasonable doubt that Snow was not amenable to probation, posed a significant risk to the community, would more likely than not reoffend, and posed a risk of harm to the fact witnesses against him.

"At sentencing, the district court used one of Snow's nonresidential burglary convictions, a severity level 7 felony, as the primary crime for calculating Snow's sentence. Based on Snow's criminal history score of E, the district court determined that Snow's presumptive sentence for nonresidential burglary was probation. However, the district court noted that Snow was on probation when he committed the crimes in this case and applied the special rule in K.S.A.2005 Supp. 21-4603d(f), which permits the district court to impose a prison sentence in a presumptive probation case without a dispositional departure when the crime was committed while the defendant was on probation. The district court then granted the State's motion for a durational departure, relying primarily on Snow's lack of amenability to probation as justification. The district court issued Snow's sentence, stating:

'I will adopt a sentence on the underlying Count One, burglary charge, of 23 months, which is the maximum [presumptive] sentence allowed. The Court will make the remainder of the sentences the aggravated number as found in each of the sentencing grid boxes for the felony counts, and I will order that they be run consecutive.

`The court is denying probation as an effect both of granting the motion and of application of the Special Rule. The sentence will then on the felonies be the maximum that is allowed, which is 92 months.

`There are four misdemeanor charges on which a six-month sentence can be rendered. The Court will render the maximum six-month sentence on each of those and will provide that they too be consecutive to the underlying felony sentences.'" Snow, 282 Kan. at 327-28, 144 P.3d 729.

In his first appeal, Snow argued that pursuant to K.S.A. 21-4720(b)(4), his total sentence could not exceed twice his base sentence. Because Snow's base sentence was 23 months, he argued that his total sentence of 92 months was illegal. Our Supreme Court agreed and vacated Snow's sentence and remanded the case to the district court for resentencing. 282 Kan. at 342, 144 P.3d 729.

On remand, the district court reiterated its decision to grant an upward durational departure based upon the jury's findings that Snow was not amenable to probation, that he posed a significant risk to the community, and that if granted probation, Snow would more likely than not reoffend. These constituted nonstatutory aggravating factors for departure. Applying the departure factors to the first count of nonresidential burglary, the district court doubled the presumptive sentence of 23 months, resulting in a base sentence of 46 months. For the remainder of the felony counts, the district court imposed the aggravated grid box term and ran the sentences consecutively, resulting in a total term of 174 months' imprisonment. Because Snow's total felony sentence could not exceed twice the base sentence, the district court imposed a controlling sentence on the felony counts of 92 months' imprisonment. Snow timely appeals.

Jurisdiction

Snow first asks this court to rule that the Supreme Court lacked jurisdiction to remand his legal presumptive sentences for resentencing. Snow originally received a presumptive term of 23 months as his base sentence for nonresidential burglary. He also received the maximum presumptive sentence on the other felony counts to be served consecutively. In other words, Snow initially received a legal presumptive sentence on each individual count, but the total sentence was illegal because it exceeded the statutory maximum for consecutive sentences. According to Snow, even though his total sentence was illegal, the Supreme Court lacked jurisdiction to order resentencing of his otherwise legal presumptive sentences on the individual counts. Following Snow's logic, the district court should have left Snow's original sentence on each count in place and doubled the original base sentence of 23 months, resulting in a controlling sentence of 46 months' imprisonment.

Jurisdiction is an issue that may be raised for the first time on appeal. Vorhees v. Baltazar, 283 Kan. 389, 397, 153 P.3d 1227 (2007). Whether jurisdiction exists is a question of law over which an appellate court's scope of review is unlimited. State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275 (2007). To the extent this issue requires interpretation of the Supreme Court's mandate and a determination of whether the district court complied with the mandate, our review is also unlimited. Edwards v. State, 31 Kan.App.2d 778, 780, 73 P.3d 772 (2003).

Arguably, the district court probably intended to impose a legal maximum sentence of 92 months' imprisonment at Snow's initial sentencing. After the jury found Snow guilty of the charges, the district court held a separate hearing on aggravating factors supporting the State's request for an upward durational departure. The jury found that multiple aggravating factors existed which were accepted by the district court. The district court noted that Snow's aggravated presumptive term on the base sentence for nonresidential burglary was 23 months. The district court could have doubled the base sentence to 46 months, which was the purpose of holding the departure hearing in the first place, but the district court failed to expressly do so. Because the district court imposed a base sentence of 23 months rather than 46 months, the Supreme Court concluded that the total sentence of 92 months was illegal. In its decision, however, the Supreme Court expressly stated that on remand the district court could resentence Snow on all counts and change the base sentence to reflect the aggravating durational departure factors:

"When a defendant is convicted on several counts, a single judgment should be pronounced declaring the full measure of punishment to be imposed for all of the offenses. [Citation omitted.] When the defendant's sentence violates the maximum consecutive sentence allowed by K.S.A.2005 Supp. 21-4720, the district court can resentence the defendant for all counts and change the base sentence to reflect aggravated durational departure factors previously found to increase the total consecutive sentence pursuant to K.S.A.2005 Supp. 21-4720. [Citation omitted.]" Snow, 282 Kan. at 342, 144 P.3d 729.

On remand, the district court did exactly what the Supreme Court signaled it could do. The district court doubled the base sentence to 46 months to reflect the upward durational departure factors and ordered consecutive sentences on each count. Because the total sentence could not exceed twice the base sentence pursuant to K.S.A. 21-4720(b)(4), the district court imposed a controlling sentence of 92 months' imprisonment. This resulted in the maximum legal sentence Snow could have received under the "double-double" rule. See Kansas Sentencing Guidelines, Desk Reference Manual, pp. 48-49 (2007).

State v. Baldwin, 24 Kan.App.2d 12, 941 P.2d 422 (1997), presents a similar factual situation. In Baldwin, the defendant pled no contest to four counts of aggravated assault on a law enforcement officer. Pursuant to the plea agreement, the district court initially imposed a sentence of 20 months for each count and ran three of the counts consecutively, for a controlling sentence of 60 months. The defendant filed a motion to correct an illegal sentence because his total sentence of 60 months exceeded twice his base sentence of 20 months. The district court agreed and proceeded to resentence the defendant. The district court increased the base sentence to 38 months based upon departure factors and reduced the sentences on the remaining three counts to 19 months. The district court ordered the first and second counts to run consecutively for a controlling sentence of 57 months. 24 Kan.App.2d at 12-13, 941 P.2d 422.

The Court of Appeals affirmed. The court found that the initial...