State v. Taylor, 76557

• Decision Date: 30 May 1997
• Docket Number: No. 76557,76557
• Citation: 262 Kan. 471,939 P.2d 904
• Parties: STATE of Kansas, Appellant, v. Ernest L. TAYLOR, Appellee.
• Court: Kansas Supreme Court

Page 904

939 P.2d 904

262 Kan. 471

STATE of Kansas, Appellant, v. Ernest L. TAYLOR, Appellee.

No. 76557.

Supreme Court of Kansas.

May 30, 1997.

Syllabus by the Court

1. An appellate court has only such jurisdiction as is provided by law. An appeal to this court may be taken by the prosecution as a matter of right after a final judgment in district court upon a question reserved by the prosecution.

2. One of the purposes for permitting the State to appeal a question reserved is to allow the prosecution to obtain review of an adverse legal ruling on an issue of statewide interest important to the correct and uniform administration of the criminal law which otherwise would not be subject to appellate review.

3. When the prosecution appeals on a question reserved, the prosecution has no statutory authority to later expand the question reserved in its notice of appeal.

4. Resolution of a criminal history sentencing issue involves the interpretation of various provisions of the sentencing guidelines. The interpretation of statutes is a question of law, and, thus, the scope of review is unlimited.

5. The general rule is that a criminal statute must be strictly construed in favor of the accused. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. Under the fundamental rule of statutory construction, the intent of the legislature governs when that intent can be ascertained from the statute.

6. The intent of the legislature is to include all prior convictions on an offender's criminal history score unless prohibited by statute.

7. The sentencing guidelines provisions of K.S.A.1994 Supp. 21-4710(a) and (d)(11) expressly indicate that for purposes of determining a defendant's criminal history category, all prior convictions are to be considered if they occurred before commission of the current offense or conviction in the current case and are not used as an element of the present crime, do not enhance the severity level or applicable penalties, or do not elevate the classification from misdemeanor to felony.

Charles R. Reimer, Assistant District Attorney, argued the cause, and Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, were with him on the brief for appellant.

Debra J. Wilson, Assistant Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief for appellee.

LOCKETT, Justice:

The State of Kansas appeals upon a question reserved, pursuant to K.S.A. 22-3602(b)(3). The State disputes the district court's finding that when one conviction, previously consolidated for trial with convictions from other complaints, is used as an element in a subsequent crime, the other previously consolidated convictions cannot be used in determining the defendant's criminal history.

On October 10, 1995, defendant Ernest L. Taylor pled guilty to nine counts in three complaints which had been consolidated for trial: (1) in case No. 95 CR 967, defendant was convicted of making a false writing, K.S.A. 21-3711 (a severity level 8 nonperson felony); two counts of criminal damage to property, K.S.A. 21-3720 (one a severity level 9 nonperson felony and one a Class B misdemeanor); and burglary, K.S.A. 21-3715 (a severity level 9 nonperson felony); (2) in case No. 95 CR 1008, defendant was convicted of two counts of theft, K.S.A. 21-3701 (one a severity level 9 nonperson felony, one a class A misdemeanor); one count of fleeing or attempting to elude an officer, K.S.A.1994 Supp. 8-1568(a) (a class B nonperson misdemeanor); and one count of reckless driving, K.S.A. 8-1566; and (3) in case No. 95 CR 1353, defendant was convicted of cocaine possession (a severity level 4 offense). After Taylor had pled guilty, the State and defense counsel informed the district judge that Taylor's criminal history score was "I." The sentencing judge agreed and, after sentencing Taylor on October 26, 1995, placed him on probation ina residential community corrections facility.

On January 19, 1996, Taylor was charged with aggravated escape from custody, K.S.A. 21-3810(a), a severity level 8 nonperson felony. In the complaint, the State alleged that Taylor escaped from the residential facility while being held for the October 10, 1995, conviction of possession of cocaine in case No. 95 CR 1353. After Taylor was apprehended, he admitted signing out of the residential community corrections facility and failing to return. Taylor pled guilty to the escape charge on February 6, 1996.

Taylor's sentencing hearing on the escape charge was held on March 3, 1996. The State raised the issue of the proper computation of Taylor's criminal history score in the previous consolidated cases. For the first time, the State argued that Taylor's criminal history score at the prior October 10, 1995, sentencing was not "I"; therefore, the judge had imposed an illegal sentence for those crimes. The district judge observed that the cases had been properly consolidated for trial. Since consolidated cases are not counted individually when scoring an individual's criminal history, the judge concluded that Taylor had received the proper sentence on October 10, 1995.

With respect to calculating Taylor's aggravated escape criminal history score, the State conceded that his prior October 10, 1995, conviction for possession of cocaine could not be counted in determining his criminal history since it was an element of the January 19, 1996, aggravated escape charge. The State asserted that all Taylor's other prior October 10, 1995, convictions should be counted in scoring his criminal history for the aggravated escape conviction. The district judge disagreed, stating:

"I'll find as a matter of law that, under the Sentencing Guidelines Act, once a case is consolidated, whether it's by the State or by the defense ..., it is a single case with all the various counts in as though it had been filed as a single case.

"I will further find as a matter of law, under the sentencing guidelines, where that single case is used or any crime from that single case is used to enhance, such as in misdemeanor escape from custody to a felony escape from custody, the State may not use the rest of that case, the rest of the charges, the rest of the convictions in that case for criminal history purposes."

The district court determined that Taylor's criminal history for the aggravated escape conviction was "I" and sentenced Taylor to 8 months' imprisonment, to be served consecutive to his prior sentences.

DISCUSSION

I. The 1995 Sentence on the Consolidated Complaints

The State first argues that Taylor's sentence imposed on October 26, 1995, for the three consolidated complaints was illegal because the district court failed to count each of the other convictions in determining his criminal history. We note that effective July 1, 1995, the legislature amended the "prior convictions" definition in K.S.A.1994 Supp. 21-4710(a) to preclude the use of other counts joined for trial in a current offense in determining criminal history. However, since Taylor committed these offenses prior to July 1, 1995, his sentence is governed by the 1994 version of the sentencing guidelines.

Taylor argues that this court has no jurisdiction to decide whether his sentence imposed on October 26, 1995, was incorrect because the State's notice of appeal did not designate the three consolidated cases in its statement of the question reserved. The record supports Taylor's assertion. The question reserved by the State is:

"Whether, when a defendant is in lawful custody from a sentence imposed for cases which were consolidated for trial and commits a new crime of aggravated escape from custody, which requires as an element a conviction for a crime, and one of the convictions is used to supply that element, the remaining counts which were previously consolidated may be used in determining the defendant's criminal history for his new crime?"

The State's notice of appeal only designates case No. 96 CR 130 (the aggravated escape charge) as the case appealed. Furthermore, the docketing statement filed by the State reflects that the single issue appealed relates to the sentence pronounced on March 3, 1996, for the aggravated escape conviction. The State, however, argues that even though it appealed under K.S.A. 22-3602(b)(3) and failed to raise this issue as a question reserved in its notice of appeal, this court has jurisdiction to determine and correct the sentence pursuant to K.S.A. 22-3504 which provides in part: "The court may correct an illegal sentence at any time."

An appellate court has only such jurisdiction as is provided by law. An appeal to this court may be taken by the prosecution as a matter of right after a final judgment in district court upon a question reserved by the prosecution. K.S.A. 22-3602(b)(3). One of the purposes for permitting the State to appeal a question reserved is to allow the prosecution to obtain review of an adverse legal ruling on an issue of statewide interest important to the correct and uniform administration of the criminal law which otherwise would not be subject to appellate review. State v. Roderick, 259 Kan. 107, Syl. p 1, 911 P.2d 159 (1996).

It is a fundamental rule of Kansas appellate procedure that an appellate court only obtains jurisdiction over the rulings identified in the notice of appeal. State v. Kerby, 259 Kan. 104, Syl. p 2, 910 P.2d 836 (1996); State v. G.W.A., 258 Kan. 703, 705-07, 906 P.2d 657 (1995); State v. Grant, 19 Kan.App.2d 686, 875 P.2d 986, rev. denied 255 Kan. 1005 (1994). Here, the State's notice of appeal designated the 1996 sentence in the aggravated escape from custody case as the only issue appealed and stated that the appeal was "taken to the Supreme Court pursuant to K.S.A. 22-3602(b)(3)," which permits the State to appeal on a question reserved. We have...