State v. Jamerson

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 115,629

STATE OF KANSAS,
Appellee,

v.

JAMES LEE JAMERSON,
Appellant.

SYLLABUS BY THE COURT

1.
Interpretation of sentencing statutes is a question of law over which an appellate
court exercises unlimited review.

2.
Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is also a
question of law over which an appellate court has unlimited review.

3.
Under K.S.A. 22-3504(1), courts may correct an illegal sentence at any time.

4.
When one or more of the sentences in a multiconviction case is illegal under
K.S.A. 22-3504, district courts may only correct the illegal sentence or sentences.

1
5.
When correcting an illegal sentence, the district court's authority in setting the
length of the new prison term includes determining whether the corrected sentence will
run consecutive to, or concurrent with, the other sentences.

Review of the judgment of the Court of Appeals in an unpublished decision filed February 3,
2017. Appeal from Shawnee District Court; EVELYN Z. WILSON, judge. Decision filed January 25, 2019.
Judgment of the Court of Appeals affirming in part, vacating in part, and remanding with directions is
affirmed in part and reversed in part. Judgment of the district court is affirmed in part, vacated in part, and
remanded with directions.

Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, argued the cause, and was on the
brief for appellant.

Jodi E. Litfin, assistant solicitor general, argued the cause, and Rachel L. Pickering, assistant
solicitor general, Chadwick J. Taylor, former district attorney, Michael F. Kagay, district attorney, and
Derek Schmidt, attorney general, were on the briefs for appellee.

The decision of the court was delivered by

NUSS, C.J.: James Lee Jamerson challenges his resentencing after the district
court granted his motion to correct an illegal sentence but then also modified the duration
and concurrent nature of one of his legal, nonbase sentences. The primary issue presented
asks: to what extent can a district court modify multiple sentences when only some of
them are held to be illegal following a motion to correct an illegal sentence?

We conclude the district court may only correct the illegal sentences. We affirm in
part and vacate in part the decision of that court, affirm in part and reverse in part the
decision of the Court of Appeals, and remand with directions.

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 FACTS AND PROCEDURAL HISTORY

In 2001, Jamerson pled no contest to (1) second-degree murder, a severity level 1
person felony; (2) aggravated robbery, a severity level 3 person felony; and (3)
conspiracy to commit aggravated robbery, a severity level 5 person felony. Jamerson and
the State agreed to recommend a 288-month controlling prison sentence, and the district
court agreed to follow the recommendation. In its implementation, the court determined
Jamerson had a criminal history score of D and sentenced him to a standard grid box term
of 253 months for second-degree murder; a downward departure to 35 months for
aggravated robbery; and a downward departure to 35 months for conspiracy. The court
ordered the aggravated robbery sentence to run consecutive to the second-degree murder
sentence and the conspiracy sentence to run concurrent with both. This resulted in a total
controlling sentence of 288 months' imprisonment.

Fourteen years later in 2015, Jamerson filed a pro se motion to correct an illegal
sentence, and his appointed counsel later filed a supplemental motion. Jamerson argued
his criminal history score was incorrect at sentencing. After holding an evidentiary
hearing, the court determined Jamerson's criminal history should have been H, not the
more serious D. To correct the error, Jamerson and the State both recommended that the
second-degree murder sentence be reduced from 253 months to 176 months. This would
in turn reduce the controlling sentence to 211 months' imprisonment.

At resentencing, the court noticed another error in Jamerson's sentences.
Specifically, the 2001 sentencing court had erroneously also applied Jamerson's criminal
history to the nonbase sentences of aggravated robbery and conspiracy to commit
aggravated robbery. Under the sentencing guidelines, the court does not apply the
defendant's criminal history score to nonbase sentences but instead uses the gridbox
applicable for no criminal history, or I. K.S.A. 2001 Supp. 21-4720(b)(5) ("Nonbase

3
sentences will not have criminal history scores applied, as calculated in the criminal
history I column of the grid, but base sentences will have the full criminal history score
assigned."). The error did not impact Jamerson's aggravated robbery conviction because
the court's downward departure to 35 months coincidentally was a gridbox sentence for a
severity level 3 person felony with no criminal history. But the 35-month sentence for
conspiracy to commit aggravated robbery was an illegal upward departure when using the
correct criminal history score. That gridbox sentence should have been 31 months
(mitigated), 32 months (standard), or 34 months (aggravated).

In an apparent effort to keep the new sentence as close as possible to the one in
2001, the 2015 court resentenced Jamerson to the aggravated gridbox sentence of 186
months for second-degree murder; the standard gridbox sentence of 59 months for
aggravated robbery; and the aggravated grid box sentence of 34 months for conspiracy.
The court ordered all three sentences to run consecutive for a total controlling sentence of
279 months' imprisonment.

Jamerson appealed, arguing the court only had authority to correct the illegal
second-degree murder sentence and lacked jurisdiction to modify his unchallenged
aggravated robbery and conspiracy sentences.

The Court of Appeals panel concluded the 2015 resentencing court had
jurisdiction to modify the conspiracy sentence from the erroneous downward departure of
35 months to the appropriate aggravated term of 34 months because the sentence itself
was illegal, independent of the illegal base sentence for second-degree murder. State v.
Jamerson, No. 115,629, 2017 WL 462716 (Kan. App. 2017) (unpublished opinion). But
it concluded the court did not have jurisdiction to deviate from the original sentence by
making the conspiracy sentence run consecutive to the second-degree murder and
aggravated robbery sentences or to resentence Jamerson to 59 months for aggravated
4
robbery. The panel held Jamerson should have a controlling sentence of 221 months—
186 for the base sentence for second-degree murder; 35 for aggravated robbery,
consecutive to the murder; and 34 for conspiracy, to be served concurrently with the
other two sentences. 2017 WL 462716, at *4.

The State petitioned this court for review of the panel's decision. Our jurisdiction
is under K.S.A. 60-2101(b) (review of Court of Appeals decision).

ANALYSIS

Issue: When correcting an illegal base sentence, did the resentencing court have
jurisdiction to vacate and resentence Jamerson's two nonbase sentences?

Standard of review

Jamerson's arguments require us to interpret sentencing statutes. Their
interpretation is a question of law over which this court exercises unlimited review. State
v. Guder, 293 Kan. 763, 765, 267 P.3d 751 (2012). Furthermore, whether a sentence is
illegal within the meaning of K.S.A. 22-3504 is also a question of law over which we
have unlimited review. State v. Lee, 304 Kan. 416, 417, 372 P.3d 415 (2016). The court
may correct an illegal sentence at any time. K.S.A. 22-3504(1); State v. Dickey, 305 Kan.
217, 219, 380 P.3d 230 (2016).

The State argues Guder should be overruled.

The State first urges this court to reexamine our holding in Guder because here it
leads to an absurd result. The State asks us to either reverse or carve out an exception to
Guder and hold that some authority still exists to treat criminal sentences as a single

5
entity. Per the State, this is especially compelling in instances where the record clearly
shows the State and defense reached the original sentence in a plea deal by considering
the sentence in its entirety. The State complains that under Guder a defendant can game
the system and undermine a plea agreement by waiting until after sentencing to object to
incorrect criminal history scores.

The Guder court, however, thoroughly analyzed legislative intent and the effect of
the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq. (KSGA), on common law
sentencing power and rejected this particular argument. Moreover, this court has
repeatedly held that the KSGA deprived district courts of the jurisdiction to modify
sentences except to correct arithmetic or clerical errors, to consider or reconsider
departures from presumptive sentences, or to modify sentences by reinstating previously
revoked probations. Guder, 293 Kan. at 766. We recently reaffirmed our holding from
Guder in State v. Warren, 307 Kan. 609, 612-13, 412 P.3d 993 (2018). So we again reject
the State's argument.

The State argues Guder does not apply.

Alternatively, the State argues Guder does not apply because of the procedural
differences between the facts in Guder and in this case. Specifically, the resentencing
court here found Jamerson's sentence illegal under K.S.A. 22-3504 (correction of
sentence), whereas Guder involved the court's authority to modify a nonvacated portion
of a sentence on remand from an appellate court. The State argues Guder and its progeny
should only be applied to cases following a remand.

In a case based on a motion to correct an illegal sentence and without remand
instructions, the State contends K.S.A. 21-4720(b) (now cited as K.S.A. 2017 Supp. 21-
6819) should control. That statute permitted the sentencing judge to exercise discretion
6
when deciding whether to impose concurrent or consecutive sentences in a multiple
conviction case:

"The sentencing judge shall otherwise have discretion to impose concurrent or
consecutive sentences in multiple conviction cases. The sentencing judge shall state on
the record if the sentence is to be served concurrently or consecutively." K.S.A. 21-
4720(b).

The State suggests that correcting an illegal sentence should follow the same rules as
those applied to sentencing on all counts for the first time. It asserts that K.S.A. 21-
4720(b) gives the district court authority to alter every sentence in a multiple conviction
case at resentencing, not just the illegal ones.

Admittedly, the statutory authority to correct an illegal sentence does not come
from the KSGA. Rather, K.S.A. 22-3504—one chapter later in the Kansas Statutes—
provides the authority for correction of an illegal sentence. And it simply says that the
court may correct an illegal sentence at any time, and that clerical mistakes in judgments,
orders, or other parts of the record and errors in the record arising from oversight or
omission may be corrected by the court at any time. K.S.A. 22-3504. The only guidance
the statute provides on correcting an illegal sentence is that the defendant shall receive
full credit for time spent in custody under the sentence prior to correction and that he or
she is entitled to a hearing and counsel.

Absent further direction by the statute itself, we must turn to the KSGA for
guidance on correctly sentencing offenders. See K.S.A. 2017 Supp. 21-6802 (the
sentencing guidelines in the KSGA apply equally to all offenders in all parts of the state);
K.S.A. 2017 Supp. 21-6819 (sentencing in multiple conviction cases). Reading K.S.A.
2017 22-3504 for the correction of an illegal sentence and the KSGA together would

7
logically advise that correcting an illegal sentence should follow the same statutory rules
as resentencing after a remand. Procedurally, we find no reason a district court's
conclusion (that a sentence is illegal) is different in any legally significant way from the
holding by this court that a sentence is illegal under K.S.A. 22-3504. In either scenario
the sentence must be corrected to become one complying with the KSGA. On concluding
one or more of the sentences in a multiconviction case to be illegal, the district court, like
an appellate court, must vacate the illegal sentence and correct it by resentencing in
accordance with the KSGA. See State v. Warren, 307 Kan. 609, 412 P.3d 993 (2018)
(when multiconviction cases are remanded for resentencing, district courts may not
modify sentences that have not been vacated and are not illegal). But this does not mean
the district court has authority to resentence anew for all of the convictions in a multiple
conviction case. Rather, as we have held in cases directing resentencing of an illegal
sentence on remand, the court may vacate and resentence only the illegal one in a
multiconviction case. Guder, 293 Kan. 763.

The dissent faults us for a perceived lack of detailed analysis. And it also argues
that K.S.A. 22-3504(1) only authorizes a "correction" of an illegal sentence, faulting us
for characterizing a sentence "correction" as "resentencing" under the KSGA. However,
to make the sentence "right"—to use one of the dissent's synonyms for "correct"—
requires resentencing of the illegal portion of the sentence in a way that conforms to the
KSGA. As explained above, the district court does not have authority to resentence anew
for all of the convictions in a multiple conviction case when only one or more, but not all,
of the sentences are illegal. The court may only resentence the illegal sentence(s). Guder,
293 Kan. 763. In this regard, the dissent overstates our holding as incorporating the entire
KSGA. Its main disagreement with our decision appears to be more with our holding in
Morningstar, an issue we address in the next section.

8
The State argues Morningstar provides authority to reconsider the entire sentence.

As a further alternative, the State argues that our decision in State v. Morningstar,
299 Kan. 1236, 329 P.3d 1093 (2014), provides a court with authority to reconsider the
entire sentence at resentencing. While this is not entirely correct, Morningstar does lend
some support to the State's position that the 2015 court had more discretion in
resentencing Jamerson than the Court of Appeals panel allowed.

The defendant in Morningstar was convicted of rape of a child under 14,
aggravated battery, abuse of a child, and child endangerment. He was originally
sentenced to an off-grid hard 25 life sentence for the rape conviction under Jessica's Law.
He also received term-of-years sentences for the remaining convictions, to run concurrent
with each other and the rape sentence. We vacated the off-grid rape sentence because the
State failed to prove the defendant's age to the jury as required by statute. We remanded
for resentencing on the rape conviction "'as a felony on the KSGA nondrug sentencing
grid.'" 299 Kan. at 1238.

Requiring a grid sentence for rape made it the base sentence because rape was a
higher severity level grid offense than the other convictions. Because rape—and not
aggravated battery—was now the base sentence, the aggravated battery sentence had to
be recalculated without applying the criminal history score. K.S.A. 21-4720(b)(5). The
district court also ordered the new gridbox rape sentence—the primary sentence—to run
consecutive to the other convictions. Morningstar argued that the court was prohibited
from changing the sentence for his primary crime from running concurrent with, to
consecutive to, his other sentences.

The Morningstar court found that argument largely unpersuasive because in
multiple conviction cases like Morningstar, whether a sentence runs consecutive to the
9
defendant's other sentence or sentences is related to, if not intertwined with, the
sentencing court's discretion to choose the appropriate term of months. The district court
necessarily has to apply the KSGA provisions governing the terms of grid sentences to
determine the sentence's length. In doing so, the court has to exercise its independent
judgment—within the limitations imposed by the KSGA—to determine the appropriate
sentence. Further, both K.S.A. 21-4608 and K.S.A. 21-4720 permitted a court to run two
or more sentences consecutive with one another but did not dictate the order in which
consecutive grid sentences must be imposed or served. 299 Kan. at 1243-46.

Under Morningstar, here the 2015 court did not have the authority at resentencing
to modify the original (legal) aggravated robbery sentence. But it did have authority to
modify the original (illegal) sentences for second-degree murder and conspiracy, which
would include whether they would run consecutive to, or concurrent with, the other
sentences. Morningstar, 299 Kan. 1236, Syl. ¶ 5 ("When a term of imprisonment is
vacated on appeal and remanded for resentencing, the district court's authority in setting
the length of the new prison term includes determining on remand whether it will run
consecutive to the defendant's other terms of imprisonment."). The KSGA permits a
district court imposing a term of imprisonment upon resentencing to determine anew
whether the prison terms runs consecutive to a defendant's other sentences.

In conclusion, we hold that our decisions from Guder and Morningstar apply to
resentencing based on a motion to correct an illegal sentence. This holding means that
here the district court erred in increasing the legal aggravated robbery sentence from 35
to 59 months. But it did have authority to resentence the illegal sentences for both
second-degree murder (from 253 to 186 months) and conspiracy (from 35 to 34 months).
And despite the holding of the panel, this included the authority to order the conspiracy
sentence to run consecutive to the others.

10
 Consequently, we reverse and remand for resentencing. The original 35-month
sentence for aggravated robbery, which was not illegal, is to be reinstated. This will make
a total controlling sentence of 255 months (186 months for second-degree murder, 35
months for aggravated robbery, and 34 months for conspiracy).

LUCKERT, J., not participating.
WILLIAM R. MOTT, District Judge, assigned.1

***

JOHNSON, J., concurring in part and dissenting in part: I agree with the majority
that, in conformance with our holding in State v. Guder, 293 Kan. 763, 267 P.3d 751
(2012), the district court erred when it modified Jamerson's original sentence for
aggravated robbery because that sentence was not illegal and, therefore, was not subject
to correction under K.S.A. 22-3504(1). Likewise, I agree that, when the district court
discerned that the originally imposed sentences for second-degree murder and conspiracy
to commit robbery were nonconforming with the criminal history statutory provisions,
i.e., were illegal, the district court had authority under K.S.A. 22-3504(1) to correct the
illegality. Where I part company with the majority is when it interprets K.S.A. 22-
3504(1) as investing a district court with the discretion to modify the legal portions of a
previously imposed sentence.

1
REPORTER'S NOTE: District Judge Mott was appointed to hear case No. 115,629
vice Justice Luckert under the authority vested in the Supreme Court by art. 3, § 6(f) of
the Kansas Constitution.

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 First, there is no statutory basis upon which to characterize a sentence correction
under K.S.A. 22-3504(1) as a "resentencing" under the Kansas Sentencing Guidelines
Act (KSGA), K.S.A. 2017 Supp. 21-6801 through 21-6824. The majority acknowledges
that the district court's authority to change Jamerson's sentences in response to his motion
to correct an illegal sentence does not emanate from the KSGA. Quite to the contrary, not
long after the adoption of the KSGA, State v. Miller, 260 Kan. 892, 897, 926 P.2d 652
(1996), abrogated on other grounds by State v. Berreth, 294 Kan. 98, 273 P.3d 752
(2012), explained that in the KSGA "no provisions are made for modifying a sentence
that has already been imposed" and "[t]hat this elimination of the court's authority to
modify was intentional."

More recently, in Guder, we reiterated that "[t]he 1992 amendments to the Kansas
sentencing statutes deprived district courts of the jurisdiction to modify sentences except
to correct arithmetic or clerical errors, to consider or reconsider departures from
presumptive sentences, or to modify sentences by reinstating previously revoked
probations. [Citations omitted.]" 293 Kan. at 766. Further, corroborating that the
Legislature acted intentionally, Guder pointed out:

"When it enacted the KSGA, our legislature explicitly addressed remands
following reversal. K.S.A. 21-4720(b)(5) provides that, in the event that a conviction of
the primary crime is reversed on appeal, the sentencing court is to follow all of the KSGA
provisions concerning sentencing in multiple conviction cases.

"Nothing in the statutory scheme, however, allows resentencing on other
convictions following the vacating of a sentence on appeal. It is telling that the legislature
expressly set out the authority of district courts to resentence on remand, without giving
them authority to resentence on other convictions when only the sentence for the primary
conviction is vacated. It is also telling that, in repealing the old statute and replacing it
with a new version in 2010, the legislature retained the limitation to remands when the
primary conviction is reversed. See L. 2010, ch. 136, sec. 300(b)(5). We will not add
12
 words to the statute that would provide jurisdiction to resentence on other counts when
only the sentence on the primary conviction is vacated. This court ascertains the
legislature's intent through the statutory language it uses, and it will not read a statute to
add something not readily found in it. State v. Finch, 291 Kan. 665, Syl. ¶ 2, 244 P.3d
673 (2011)." 293 Kan. at 766-67.

Consequently, if the district court's new sentence is to survive, it must comply with the
sentence-correction provisions of K.S.A. 22-3504, which, as the majority acknowledges,
is contained in the statutory chapter labeled as "Criminal Procedure," rather than in the
chapter where the KSGA resides.

Normally, our first step in determining whether a district court's acts fall within the
purview of a statute is to look at what the statute actually says, giving common words
their ordinary meanings. See State v. Phillips, 299 Kan. 479, 495, 325 P.3d 1095 (2014).
(legislative intent ascertained through statutory language, giving common words their
ordinary meanings). In our case, the applicable statutory language is quite
straightforward: "The court may correct an illegal sentence at any time." K.S.A. 22-
3504(1). Here, however, the majority briefly summarizes the provisions of K.S.A. 22-
3504, opines that they do not include explicit directions for the district court, and declares
that logic would advise us to interpret K.S.A. 22-3504 as importing the resentencing
provisions of the KSGA. Slip op. at 7-8.

Granted, one can find a rule of statutory construction to support a desired result in
many instances. But incorporating an entire act into a plainly worded statute because we
believe it would be the logical thing to do is directly contrary to our most basic statutory
construction concepts. To begin, when there is no ambiguity in a statute, we simply have
no need to resort to canons of construction. Phillips, 299 Kan. at 495. "When a statute is
plain and unambiguous, this court must give effect to the statute's express language,
instead of determining what the law should or should not be." Redd v. Kansas Truck
13
Center, 291 Kan. 176, 188, 239 P.3d 66 (2010). When the statutory language is plain, we
refrain from reading something into the statute that is not readily found in its words. State
v. Brooks, 298 Kan. 672, 685, 317 P.3d 54 (2014). Most certainly, we do not read an
entire act into a single statute, unless that statute's language could be read to permit such
incorporation. I submit that such a reading of K.S.A. 22-3504(1) is not justified or
rational.

By implication, then, the majority must have found ambiguity in K.S.A. 22-
3504(1). The words we need to address—the court may correct an illegal sentence at any
time—seem clear enough. No one quibbles about the meaning of "the court" or "at any
time," and the parties here do not dispute that Jamerson's murder and conspiracy
sentences were each "an illegal sentence." Consequently, if an ambiguity is to be found, it
must be divined from the words "may correct."

Perhaps it is useful to consider not only what the statute says, but also what it does
not say. For instance, K.S.A. 22-3504(1) does not say that the court may modify an illegal
sentence at any time. It does not say that a court may resentence a person with an illegal
sentence at any time. It only authorizes a correction. I understand the ordinary meaning
of the common word "correct," to be to make something right, e.g., to correct a
grammatical error. Cf. Webster's New World College Dictionary 333 (5th ed. 2016)
(defining "correct" as "to make right; change from wrong to right; remove errors from").
In other words, to correct something means to fix what is wrong with it. One does not, in
ordinary parlance, "correct" something that is not wrong in the first place. Rather,
something that is already correct can be changed; it can be altered; it can be modified; it
can be transformed; it can be redone, refashioned, remade, remodeled, revamped,
revised, or reworked. But it cannot be corrected.

14
 There are circumstances under which the imposition of a concurrent sentence
could be illegal as nonconforming to statutory provisions. See, e.g., K.S.A. 2017 Supp.
21-6606(c) (sentence for new crime while on probation shall be consecutive to probated
sentence). In that circumstance, the concurrent sentencing would need correction. Here,
however, the concurrent sentence for the conspiracy conviction was within the judge's
discretion and legal. K.S.A. 2017 Supp. 21-6606(a) (sentence shall run concurrent or
consecutive as the court directs). In other words, the court's use of an illegal criminal
history score did not render the concurrent sentencing illegal. Accordingly, when the
district court changed the concurrent conspiracy sentence to a consecutive conspiracy
sentence, she was not correcting an illegal sentence; she was exercising a discretion that
was only available to her for a sentencing under the KSGA. Consequently, as a matter of
statutory interpretation, K.S.A. 22-3504(1) did not authorize the modification of the legal
portion of the conspiracy sentence.

Finally, the majority attempts to find support in State v. Morningstar, 299 Kan.
1236, 329 P.3d 1093 (2014). That reliance is misplaced; Morningstar is factually
distinguishable. Morningstar's conviction for off-grid rape was reversed because the State
failed to prove an essential element of that crime. The case was remanded for sentencing
on the lesser included offense of on-grid rape, i.e., the district court was directed to
impose an initial sentence on a new conviction. The reversal also caused a change in the
primary crime in a multiple conviction case. As noted above, Guder explained that the
Legislature treats a conviction reversal in a multiple convictions case differently than an
illegally imposed sentence. And, as the majority notes, a minority opined that
Morningstar suffered from flawed rationale. See Morningstar, 299 Kan. at 1247-50
(Johnson, J., joined by Beier, J., dissenting).

In short, I would agree with the majority that the district court erred in increasing
the legal aggravated robbery sentence from 35 to 59 months but did not err in correcting
15
the second-degree murder sentence to 186 months and correcting the conspiracy sentence
to 34 months. But I would hold that the district court erred when it resentenced Jamerson
to serve his conspiracy sentence consecutively.

BEIER, J., joins in the foregoing concurring and dissenting opinion.

16