State v. Tafoya

• Decision Date: 17 June 2016
• Docket Number: No. 107,684,107,684
• Citation: State v. Tafoya, 304 Kan. 663, 372 P.3d 1247 (Kan. 2016)
• Parties: State of Kansas, Appellee, v. Kenneth J. Tafoya, Appellant.
• Court: Kansas Supreme Court

304 Kan. 663

372 P.3d 1247

State of Kansas, Appellee,

v.Kenneth J. Tafoya, Appellant.

No. 107,684

Supreme Court of Kansas.

Opinion filed June 17, 2016

Heather Cessna, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Julie A. Koon, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

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

Kenneth. J. Tafoya was convicted by a jury in 2008 of one count of driving under the influence (DUI). Tafoya had three prior DUI convictions, all occurring in the 1990s. When Tafoya was sentenced in 2008, Kansas DUI sentencing statutes provided for a lifetime lookback period for purposes of classifying the current conviction as a second conviction, third conviction, etc. See K.S.A. 2010 Supp. 8–1567(o)(3). Including his three prior convictions from the 1990s, Tafoya's 2008 conviction was properly classified as a fourth DUI, and Tafoya was sentenced accordingly to 180 days in jail, 12 months' postrelease supervision, and a mandatory $2,500 fine.

On direct appeal, the Court of Appeals ruled that the district court had erred by imposing a mandatory fine without making the necessary factual findings concerning Tafoya's financial condition. State v. Tafoya , No. 100784, 2010 WL 5185473, at *9 (Kan.App.2010) (unpublished opinion), rev. denied 293 Kan. 1113 (2011) (Tafoya I ). Specifically, the panel upheld Tafoya's conviction and sentencing for a fourth DUI but found that the district court erred by failing to consider community service under K.S.A. 2006 Supp. 8–1567(j) in lieu of a direct payment of the fine. 2010 WL 5185473, at *9. Announcing its holding on this point, the panel ordered that “Tafoya's fine must be vacated and the case must be remanded for reconsideration of the method of payment of the fine.” 2010 WL 5185473, at *9. However, when summarizing the outcome of the appeal in the final sentence of the opinion, the Court of Appeals wrote: “Affirmed in part; sentence vacated and remanded for resentencing.” 2010 WL 5185473, at *10.

After the Court of Appeals decision in Tafoya I, but before the district court held the remand hearing as instructed by the panel, the legislature amended the DUI lookback provisions, effective July 1, 2011, to encompass only convictions occurring “on or after July 1, 2001.” K.S.A. 2011 Supp. 8–1567(j)(3). Thus, at the time of the remand hearing in February 2012, Tafoya sought the benefit of the new, more limited lookback period which would have resulted in a resentencing for a first DUI, rather than a fourth DUI. The district court ruled that it had no jurisdiction to resentence Tafoya because the panel's mandate was limited to “reconsideration of the method of payment of the fine.” The district court simply allowed Tafoya to perform community service in lieu of a direct payment of his mandatory DUI fine.

Tafoya again appealed and argued for a retroactive application of K.S.A. 2011 Supp. 8–1567(j)(3) to his 2008 conviction. State v. Tafoya , No. 107684, 2013 WL 1457946 (Kan.App.2013) (unpublished opinion) (Tafoya II ). Another panel of the Court of Appeals had recently decided State v. Reese, ruling that the 2011 lookback period was not applicable to crimes committed prior to its effective date. 48 Kan.App.2d 87, 283 P.3d 233 (2012), rev'd 300 Kan. 650, 333 P.3d 149 (2014). Relying on the Court of Appeals' holding in Reese, the Tafoya II panel ruled that because Tafoya's conviction occurred in 2008, he was not entitled to the 2011 lookback period. 2013 WL 1457946, at *2–3.

Soon after, however, while Tafoya's petition for review of Tafoya II was pending, we considered the decision of the Court of Appeals in Reese and reversed. State v. Reese , 300 Kan. 650, 333 P.3d 149 (2014). There, we held that the question was not properly one of retroactive application. Rather, because the classification of a DUI conviction as a first conviction, second conviction, etc. was to occur “at the time of sentencing,” the 2011 lookback period applied “to all persons who are sentenced for DUI on or after the July 1, 2011, effective date of the amended statute.” 300 Kan. 650, 333 P.3d 149, Syl. In light of our decision in Reese, we granted a number of pending petitions for review affected by the Reese holding—including Tafoya's petition for review of the decision in Tafoya II —and then summarily vacated the decisions of the Court of Appeals and remanding the cases to the Court of Appeals for reconsideration in light of Reese.

The question on remand—and the question now before us in Tafoya's third trip to this court—was a simple one: When was Tafoya sentenced? If he was sentenced in 2008, the lifetime lookback provision was properly applied. If he was sentenced following the remand hearing in 2012, however, pursuant to Reese he would be entitled to the benefits of the 2011 lookback period. In Tafoya's case, the sentencing difference is significant. The Court of Appeals again affirmed Tafoya's sentence for a fourth DUI conviction, finding that Tafoya was actually sentenced in 2008 and that the 2012 remand hearing was limited to the question of the method of payment of the mandatory fine. As such, the panel reasoned that Tafoya was neither sentenced nor resentenced in 2012. State v. Tafoya , No. 107684, 2014 WL 7152142, at *2 (Kan.App.2014) (unpublished opinion) (Tafoya III ).

Tafoya appeals and we now affirm, thus ending his long sojourn through our appellate courts.

Analysis

Whether a district court has complied with the mandate of an appellate court is a question of law over which we exercise plenary review. State v. Guder , 293 Kan. 763, 765, 267 P.3d 751 (2012). Generally referred to as the “mandate rule,” K.S.A 60–2106(c) provides:

“When ... a decision of an appellate court becomes final, such court shall promptly cause to be transmitted to the clerk of the district court its mandate containing such directions as are appropriate under the decision. A copy of the opinion of the court shall accompany and be a part of the mandate.... Such mandate and opinion, without further order of the judge, shall thereupon be a part of the judgment of the court if it is determinative of the action, or shall be controlling in the conduct of any further proceedings necessary in the district court.”

“If our decision and mandate is fully determinative of the issues presented in the proceedings below, they become a part of the judgment in the case without further order of the trial court.” Provance v. Shawnee Mission U.S.D. No. 512 , 235 Kan. 927, 933, 683 P.2d 902 (1984) (construing K.S.A. 60–2106 ). Furthermore, “where our decision and mandate [of the appellate court] does not fully determine the issues pending before the trial court ... directions are necessary or appropriate to control the conduct of further proceedings to resolve any remaining issues.” 235 Kan. at 933, 683 P.2d 902.

A sentence is effective when pronounced from the bench. State v. Mason , 294 Kan. 675, 677, 279 P.3d 707 (2012) ; State v. Jackson , 262 Kan. 119, 140, 936 P.2d 761 (1997). A sentence is the judgment of the court that formally declares to the accused the legal consequences of his or her conviction. State v. Van Winkle , 256 Kan. 890, 895, 889 P.2d 749 (1995). The final judgment in a criminal case is the sentence. 256 Kan. at 895, 889 P.2d 749. Once sentence is pronounced and judgment entered, the district court loses jurisdiction over a criminal case except to correct arithmetic or clerical errors. State v. Hall , 298 Kan. 978, 983, 319 P.3d 506 (2014).

Likewise, a district court has no authority to modify unchallenged sentences following a remand by an appellate court except when modification is needed to correct arithmetic or clerical errors. See Guder , 293 Kan. at 766–67, 267 P.3d 751. The only other exception occurs when a sentence is determined to be illegal within the meaning of K.S.A. 22–3504, which may happen at any time. State v. Harp , 283 Kan. 740, 743, 156 P.3d 1268 (2007). Thus, on remand from a higher court, absent narrow exceptions, a district court's jurisdiction to resentence or otherwise deviate from an already pronounced sentence is limited to the express instructions contained in the higher court's mandate.

Simply put, the outcome of this case depends entirely on the mandate issued by the Tafoya I panel of the Court of Appeals to the lower court. Ordinarily, determining the controlling content of an appellate court's mandate ought not be difficult. In this case though, as has become clearer in light of the peculiar subsequent series of events and legal holdings, the Tafoya I panel gave what amounted to two different, contradictory explanations of its mandate. On the one hand, it instructed: “Tafoya's fine must be vacated and the case must be remanded for reconsideration of the method of payment of the fine”; and on the other hand, it announced: “[Tafoya's] sentence vacated and remanded for resentencing.” 2010 WL 5185473, at *9–10. Which is it?

If the Tafoya I mandate vacated Tafoya's 2008 sentence and remanded for resentencing, he should have had the benefit of the 2011 lookback period and been resentenced accordingly. If, however, the Tafoya I mandate did not vacate Tafoya's 2008 sentence and remanded to the district court only for the limited purpose of properly considering and determining the method of the payment of the mandatory fine, then the district court was correct that it was not vested with jurisdiction to resentence Tafoya, and his 2008 sentence cannot be disturbed or otherwise rendered illegal by the 2011 changes to the lookback period.

Given that Tafoya I remanded this case pursuant to our holding in State v. Copes , 290 Kan. 209, 224 P.3d 571 (2010), we find it useful to look to Copes to determine the substantive effect of a Copes remand. In Copes, we held:

“Where the amount of fine is discretionary, this court has

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