State v. Brown

NOT DESIGNATED FOR PUBLICATION

Nos. 123,578
123,579

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

LEWIS BROWN,
Appellant.

MEMORANDUM OPINION

Appeal from Harvey District Court; MARILYN M. WILDER, judge. Opinion filed January 7, 2022.
Sentences vacated and case remanded with directions.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Jodi Liftin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before POWELL, P.J., ATCHESON, J. and RICHARD B. WALKER, S.J.

PER CURIAM: The Harvey County District Court revoked Defendant Lewis
Brown's probation in two cases and ordered that he serve a modified prison sentence for
robbery in one and the original sentence for criminal threat in the other. Brown has
appealed on the grounds his criminal history was incorrectly overstated at his original
sentencing, resulting in terms of imprisonment he can now challenge as illegal. We agree
with Brown that his 1998 Missouri conviction for robbery was improperly treated as a
person felony for criminal history purposes in both cases. We, therefore, vacate the
sentences and remand these cases to the district court for resentencing.

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 In a single hearing in March 2019, Brown pleaded no contest to robbery in one
case and criminal threat in a second case. The district court imposed consecutive prison
terms of 128 months on the robbery conviction and 15 months on the criminal threat
conviction and, consistent with a plea agreement, placed Brown on probation. Brown
violated the terms of his probation. The circumstances of the underlying crimes and the
probation violation are irrelevant to this appeal. The district court revoked Brown's
probation on May 19, 2020, and ordered him to serve a modified sentence of 75 months
for the robbery consecutive to the original 15-month sentence for the criminal threat.
Brown has appealed.

LEGAL ANALYSIS

As we have indicated, on appeal, Brown does not dispute the district court's
decision to revoke his probation. He challenges how his criminal history score was
determined in these two cases and argues the sentences the district court ultimately
imposed are too long.

A defendant may challenge an illegal sentence at any time while he or she is
serving the sentence. K.S.A. 2020 Supp. 22-3504(a). A sentence is illegal if it does not
conform to the governing statutory requirements, including those directing how criminal
histories should be determined. K.S.A. 2020 Supp. 22-3504(c)(1); State v. Dickey, 305
Kan. 217, 220, 380 P.3d 230 (2016). Brown may raise the point now, even though he did
not challenge his criminal history or the underlying sentences when the district court
imposed them. The State agrees that procedurally this issue is properly before us.

The district court determined Brown had a criminal history score of B, based on
two person felony convictions. In both cases, the district relied on Brown's 1998 Missouri
conviction for first-degree robbery as one of the predicate felonies. And in each case, the
district court relied on the other case as the second predicate felony—the criminal threat

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conviction was scored in Brown's criminal history in the Kansas robbery case; and the
Kansas robbery conviction was scored in his criminal history for the criminal threat case.

Based on when Brown committed the crimes of conviction in these two cases, the
parties agree the rule established in State v. Wetrich, 307 Kan. 552, 561-62, 412 P.3d 984
(2018), applies to his criminal history calculation, so any out-of-state felony conviction
must proscribe the same or narrower conduct as the comparable Kansas crime to be
scored as a person felony. If the elements of the out-of-state crime are broader, then the
conviction should be treated as a nonperson felony for criminal history purposes. Person
felonies increase a defendant's presumptive guidelines sentence more than nonperson
felonies, so the classification is legally significant.

Missouri Robbery Conviction

In 1998, a person would be guilty of robbery in the first degree in Missouri if he or
she:

"forcibly steals property and in the course thereof . . . .
"(1) Causes serious physical injury to any person; or
"(2) Is armed with a deadly weapon; or
"(3) Uses or threatens the immediate use of a dangerous instrument against any person; or
"(4) Displays or threatens the use of what appears to be a deadly weapon or dangerous
instrument." Mo. Rev. Stat. § 569.020.1 (1998).

Robbery in the first degree is a felony. The key to our discussion is its classification as a
person or nonperson felony. And central to that determination, "forcibly steals" was and
is statutorily defined in Missouri to include the use of force for "the retention [of
property] immediately after the taking." Mo. Rev. Stat. § 569.010(1) (1998).

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 In keeping with that definition, Missouri courts hold that robbery includes a
completed theft accomplished without force or threat of force, if the thief then threatens
or uses the proscribed force to get away with the property. See Wallace v. State, 573
S.W.3d 136, 145 (Mo. App. 2019); State v. Whittaker, 551 S.W.3d 498, 501-02 (Mo.
App. 2018); State v. Harris, 622 S.W.2d 742, 744-45 (Mo. App. 1981). A common
scenario entails a shoplifter who resorts to force to escape with the stolen merchandise
when confronted outside a store by security officers. See Whittaker, 551 S.W. 3d at 502-
04 (stating rule and surveying cases); see also Harris, 662 S.W.2d at 744-45.

For criminal history purposes, the comparable Kansas crimes would be robbery or
aggravated robbery codified in K.S.A. 2017 Supp. 21-5420:

"(a) Robbery is knowingly taking property from the person or presence of another by
force or by threat of bodily harm to any person.
"(b) Aggravated robbery is robbery, as defined in subsection (a), when
committed by a person who:
"(1) Is armed with a dangerous weapon; or
"(2) inflicts bodily harm upon any person in the course of such robbery."

In contrast to Missouri, the Kansas appellate courts have repeatedly recognized that a
thief's threat or use of force to escape after taking control of someone else's property does
not make the theft a robbery. State v. Plummer, 295 Kan. 156, 168, 283 P.3d 202 (2012);
State v. Bateson, 266 Kan. 238, 246-47, 970 P.2d 1000 (1998); State v. Aldershof, 220
Kan. 798, Syl. ¶ 3, 556 P.2d 371 (1976) ("Robbery is not committed where the thief has
gained peaceable possession of the property and uses no violence except to resist arrest or
to effect his escape."). The threat or use of force may itself constitute an assault or battery
or the corresponding aggravated felony versions of those crimes, distinct from and in
addition to the theft. Bateson, 266 Kan. at 246-47; Aldershof, 220 Kan. at 804.

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 The facts in Aldershof sharply illustrate the difference between Kansas and
Missouri law on this point. While in a dimly lit Wichita club, Aldershof filched the
purses of two female patrons and left the establishment. One of the women confronted
Aldershof in the parking lot. He punched her in the face and drove off in a pickup. The
court held that the facts established a theft rather than a robbery because Aldershof had
secured possession of and exercised dominion over the purses before the physical
confrontation. 220 Kan. at 803-04.

In short, Missouri's robbery in the first degree criminalizes a broader range of
conduct than does the Kansas statute defining robbery and aggravated robbery. Under
Wetrich, Brown's 1998 Missouri conviction, therefore, must be scored as a nonperson
felony for criminal history purposes. As a result, the district court overstated Brown's
criminal history in sentencing him on both Kansas convictions for robbery and criminal
threat on which his probation was revoked. Two other panels of this court have
considered the same issue and have come to the same conclusion on how Missouri
robbery convictions should be scored in a defendant's criminal history. See State v.
Weston, No. 122,320, 2021 WL 1945153, at *6 (Kan. App. 2021) (unpublished opinion);
State v. Kanatzar, No. 119,399, 2020 WL 593965, at *12 (Kan. App. 2020) (unpublished
opinion), rev. denied 313 Kan. 1044 (2021).

Alternatively, the State contends the Kansas statutes criminalizing misdemeanor
and aggravated assault, misdemeanor battery and aggravated battery, or criminal threat
should be compared to the Missouri robbery statute in applying the Wetrich rule. We find
the tersely presented argument unpersuasive for several reasons.

First, Wetrich appears to begin with the identification of a Kansas criminal statute
that is roughly similar to the out-of-state conviction in the sense of proscribing the same
general actus reus or bad conduct undertaken with a more or less common mens rea or
bad intent. A court then compares the elements of the out-of-state crime with the

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identified Kansas crime to determine if they are the same or narrower, meaning the
foreign conviction can be scored as a person felony for criminal history purposes. In
Wetrich, the court identified and then compared Missouri and Kansas burglary statutes.
After finding the Missouri statute to be broader than the Kansas statute, the court did not
look at other possible comparators, such as criminal trespass.

Here, the Missouri and Kansas robbery statutes criminalize markedly similar
conduct in that both prohibit the taking of property from another through a threat, display,
or use of force, including weapons. The crimes do differ in some relatively minor
respects, and the Missouri crime is broader than the Kansas crime. Those determinations,
however, conclude the Wetrich inquiry and define the outcome for criminal history
purposes. The process does not then extend to Kansas crimes that are demonstrably less
like Missouri's robbery statute. The State's effort to shift the comparison to forms of
assault, battery, and criminal threat fails for that reason.

Moreover, the Weston court did compare those crimes with Missouri robbery in
the second degree and found that form of robbery to be both broader and materially
dissimilar to them. 2020 WL 4219895, at *5-6. Assuming such a comparison to be
appropriate in the first instance, we find the reasoning in Weston to be persuasive here
and find those crimes are not comparable to the Missouri robbery in the first degree.
Robbery in the first degree is itself broader than but inclusive of robbery in the second
degree. That is, all of the elements of robbery in the second degree are elements of
robbery in the first degree. A fortiori, if Missouri robbery in the second degree is not
comparable to the Kansas crime of robbery, then Missouri robbery in the first degree
cannot be.

In addition, however, such a secondary comparison of Kansas crimes necessarily
should include theft, as well. The Kansas courts have recognized theft to be a lesser
degree of the same historical crime as robbery, so a jury should be instructed on both in

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factually appropriate circumstances. See Plummer, 295 Kan. at 164-65. The commonality
rests on the perpetrator's unlawful taking of property—a key mutual element absent in
assault, battery, and criminal threat. 295 Kan. at 164; State v. Long, 234 Kan. 580, 591-
92, 675 P.2d 832 (1984) ("unlawful taking of the property of another is the gravamen of
both" robbery and theft). Those cases and the historical connection between theft and
robbery tilt in favor of theft, a nonperson crime, as the appropriate comparator if robbery
were discarded, although we don't think it should be. Likewise, there would be no
definitive basis for preferring assault, battery, or criminal threat over theft in any such
analysis—supporting the conclusion we otherwise reach on how Brown's 1998 Missouri
robbery conviction should be treated.

As a tertiary argument on appeal, the State has suggested the record does not
clearly show what Brown's old robbery conviction was for. The entry in the presentence
investigation report is garbled. But the State introduced a journal entry of conviction and
a Jackson County Circuit Court printout establishing the crime, the sentencing date, and
the disposition at the sentencing hearing. Those documents adequately clarified the
presentence report, and we find the district court record and the record on appeal
sufficiently establish the Missouri conviction for criminal history purposes.

Criminal Threat Conviction

Brown also contends his conviction for criminal threat should not have been
scored as part of his criminal history in the Kansas robbery case. He bases his contention
on State v. Boettger, 310 Kan. 800, 823-24, 450 P.3d 805 (2019), that held the statutory
proscription of reckless criminal threat in K.S.A. 2018 Supp. 21-5415(a)(1) to be
unconstitutionally overbroad on its face. That portion of the criminal threat statute is,
therefore, unenforceable. The Kansas Supreme Court stayed the mandate in Boettger to
allow the State the opportunity to seek review of the constitutional issue in the United

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States Supreme Court. The Court denied the State's petition for a writ of certiorari, 140 S.
Ct. 1956, and the mandate issued on June 23, 2020.

The holding in Boettger does not apply retroactively to void convictions for
reckless criminal threat that became final before the mandate issued, and those
convictions also could be scored for criminal history purposes in sentencing defendants
before then. State v. Louis, 59 Kan. App. 2d 14, Syl. ¶ 9, 476 P.3d 837 (2020) (scoring
criminal history using criminal threat conviction), rev. denied 313 Kan. 1044 (2021);
State v. McCullough, No. 122,167, 2021 WL 646111, at *4 (Kan. App. 2021)
(unpublished opinion) (same), rev. denied 314 Kan. __ (August 27, 2021). That undoes
Brown's claim here because he was originally sentenced on the robbery conviction in
June 2019 before Boettger was even announced and the sentence was modified in May
2020 before Boettger became final.

Moreover, Brown seeks relief here on a motion to correct an illegal sentence rather
than in a direct appeal from his robbery conviction, further undercutting any argument for
applying Boettger. In that respect, the result we and the other panels have reached
conforms to the general rule in K.S.A. 2020 Supp. 22-3504(c), precluding relief for an
illegal sentence if the defendant's claim is based on an appellate court decision that
changes the law after the district court has imposed sentence. The statute includes a
limited exception if the change occurs during the pendency of a defendant's direct appeal
of the conviction resulting in the sentence. The statute essentially codifies the sentencing
rule pronounced earlier in State v. Murdock, 309 Kan. 585, 591-92, 439 P.3d 307 (2019),
and precludes any relief for Brown. The district court properly included Brown's criminal
threat conviction in the criminal history used to sentence him in the Kansas robbery case.

The limitation in K.S.A. 2020 Supp. 21-6810(d)(9), prohibiting the scoring of a
conviction for criminal history purposes if the crime has been declared unconstitutional,
does not require a different result. That statute explains what should be scored in

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compiling a defendant's criminal history; it does not establish when the scoring takes
place. But K.S.A. 2020 Supp. 21-6803(c) defines "criminal history" as the offender's
record of convictions "at the time such offender is sentenced." In tandem, K.S.A. 2020
Supp. 21-6810(d)(9) and K.S.A. 2020 Supp. 21-6803(c) are consistent with the scope of a
correctable illegal sentence in K.S.A. 2020 Supp. 22-3504 and Murdock. Brown was
sentenced for the robbery (whether we consider the original sentence or the modified
sentence) before Boettger became final, so his criminal threat conviction was properly
included in his criminal history.

Rejoinder to Separate Opinion

Judge Powell would uphold the modified 75-month sentence the district court
imposed on Lewis after revoking his probation even though it plainly exceeds what
would be authorized under the sentencing guidelines, given Lewis' properly scored
criminal history. He relies on K.S.A. 2020 Supp. 22-3716(c)(1)(C), permitting the
imposition of "any lesser sentence" upon a probation revocation, and on Kansas Supreme
Court authority construing comparable statutory language. We have declined to take that
course for two interlocking reasons.

First, as Judge Powell mentions, the State has never asserted this argument. The
point does not go to our jurisdiction, so we need not consider it. Cf. Wiechman v.
Huddleston, 304 Kan. 80, 84, 370 P.3d 1194 (2016) ("appellate court . . . has a duty to
question jurisdiction on its own initiative."). We typically decline to address issues the
parties have not briefed. See State v. Salary, 309 Kan. 479, 481, 437 P.3d 953 (2019)
("Issues not adequately briefed are deemed waived or abandoned."); see also State v.
McCoy, No. 122,650, 2021 WL 1149180, at *2 (Kan. App. 2021) (unpublished opinion)
(issue "not briefed" deemed waived). That alone is sufficient to dispose of the matter. If
we were to decide the point Judge Powell raises, we really would have an obligation to
invite the parties—particularly Brown, who would be disadvantaged—to respond before

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ruling. Lumry v. State, 305 Kan. 545, 566, 385 P.3d 479 (2016); State v. Puckett, 230
Kan. 596, Syl. ¶ 2, 620 P.2d 1198 (1982).

Second, even without the benefit of the parties' input, we question the substantive
conclusion Judge Powell reaches, especially based on the case authority he cites. He
relies on State v. Roth, 308 Kan 970, 424 P.3d 529 (2018), and State v. Sandoval, 308
Kan. 960, 960, 425 P.3d 365 (2018), that are functionally companion opinions the Kansas
Supreme Court issued the same day. Both address whether the State can challenge an
impermissibly short period of postrelease supervision after a criminal defendant's
probation has been revoked. Postrelease supervision requires defendants to report to
parole officers and refrain from specific activities considered detrimental to their
reintegration into society after serving prison sentences for their crimes. The period of
supervision can range from 12 months to the defendant's life, depending on the crime of
conviction.

In Sandoval, the State was permitted to challenge the period of postrelease
supervision after the defendant's probation had been revoked and the district court
effectively declined to modify the original sentence, including an impermissibly short
postrelease supervision. Conversely, in Roth, the State could not attack an otherwise too
short a period of postrelease supervision when the district court reduced the defendant's
prison sentence upon revoking his probation. So Roth, rather than Sandoval, is
procedurally analogous to Brown's circumstance, since the district court shortened his
sentence for the robbery conviction.

But applying Roth and Sandoval here poses a confounding exercise for several
reasons. Neither case offered a clear majority opinion expressing a unified rationale for
the outcome. Thus, Roth produced a per curiam lead opinion, reflecting the views of two
justices; a brief concurring opinion of two justices employing an arguably broader
rationale; and a short dissent drawing the support of the remaining three justices. Roth

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was convicted of one count of aggravated sexual battery, a crime requiring lifetime
postrelease supervision, and two counts of aggravated burglary. At the original
sentencing, the district court ordered Roth to serve a controlling prison term of 102
months, reflecting consecutive sentences, with postrelease supervision for 24 months and
placed him on probation for 60 months. Roth should have been sentenced to lifetime
postrelease supervision.

The district court later revoked Roth's probation and shortened the overall prison
term by ordering Roth to serve the sentences concurrently. The district court again placed
Roth on postrelease supervision for 24 months, apparently believing that to be the
statutorily authorized period. The State then challenged the duration of the post release
supervision as an illegal sentence. Four justices rejected the State's position on the
grounds the modified sentence—including the otherwise impermissibly short period of
postrelease supervision—amounted to a "lesser sentence" allowed upon a probation
revocation under K.S.A. 2020 Supp. 22-3716(b). The "lesser sentence" provision in that
subsection mirrors the language in K.S.A. 2020 Supp. 22-3716(c)(1)(C) applicable here.
All three opinions in Roth expressly recognized the issue concerned the State's challenge
to the district court's failure to impose a statutorily mandated period of postrelease
supervision.

The issue here differs materially because it dictates the length of Brown's
imprisonment and concomitant loss of liberty rather than the relatively mild impositions
of postrelease supervision. (The impositions are significant, but they pale in comparison
to being locked up for term measured in years.) Brown's criminal history has been
erroneously overstated. If his 1998 Missouri robbery conviction is correctly scored as a
nonperson felony, the modified 75-month prison sentence the district court imposed upon
revoking his probation exceeds the permissible guidelines range of 53 to 60 months for
the Kansas robbery. That sentence would require an upward durational departure the
State neither sought nor the district court ordered.

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 It doesn't ineluctably follow that Roth and Sandoval would permit the district court
to impose an illegally long prison sentence on Brown after revoking his probation simply
because that sentence is shorter than the illegal sentence originally imposed on him. The
court did not purport to consider, let alone decide, this set of circumstances in Roth and
Sandoval. Incarceration impinges on a person's fundamental liberty interests. See Hamdi
v. Rumsfeld, 542 U.S. 507, 529, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (2004) ("[T]he most
elemental of liberty interests [is] the interest in being free from physical detention by
one's own government."); Foucha v. Louisiana, 504 U.S. 71, 78-80, 112 S. Ct. 1780, 118
L. Ed. 2d 437 (1992) (government effort to involuntarily commit individual because of
mental illness implicates substantive liberty rights and triggers procedural due process
protections); State v. Gonzalez, 57 Kan. App. 2d 618, 624, 457 P.3d 938 (2019). Neither
Roth nor Sandoval speaks to the arguably excessive and, thus, illegal incarceration of
criminal defendants following and based on probation revocation.

Likewise, sentencing statutes, such as K.S.A. 2020 Supp. 22-3716(c), must bear at
least some rational relationship to cognizable government interests to the extent they
impose different burdens on otherwise comparable defendants. See Chapman v. United
States, 500 U.S. 453, 465, 111 S. Ct. 1919, 114 L. Ed. 2d 524 (1991); United States v.
Titley, 770 F.3d 1357, 1359 n.3 (10th Cir. 2014). As the Chapman Court explained, upon
a criminal conviction, a person may be punished as required by statute and consistent
with constitutionally mandated equal protection "so long as the penalty is not based on an
arbitrary distinction." 500 U.S. at 465. A statute that abides arbitrary punishment violates
a criminal defendant's right to equal protection secured in the Fourteenth Amendment to
the United States Constitution. We struggle to find some rational policy objective in
allowing criminal defendants to challenge illegal terms of incarceration upon sentencing
but precluding at least some of them from doing so after their probation has been
revoked.

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 For example, if the district court sentenced John Doe for robbery and relied on a
1998 Missouri robbery conviction as one of two person felonies to impose a 75-month
sentence on him, ostensibly reflecting a downward durational departure from the
presumptive guidelines range of 114 to 128 months, Doe could challenge that sentence as
illegal on the grounds the past conviction should have been scored as a nonperson felony,
making the proper guidelines range 53 to 60 months. As Judge Powell construes Roth and
Sandoval, those cases foreclose Brown from making the same challenge here only
because the district court reduced his otherwise illegal sentence of 128 months to 75
months after revoking his probation, even though the sentence still exceeds the
controlling guidelines range. There seems to be no more than an arbitrary distinction
between Doe and Brown, implicating constitutional guarantees of equal protection. And
the result conflicts with the basic policy objective behind the sentencing guidelines:
Similarly situated defendants should receive substantially similar punishments for the
same crime. See State v. Huerta, 291 Kan. 831, 836, 247 P.3d 1043 (2011). Arbitrary
government action that materially compromises a fundamental right also implicates
constitutionally protected substantive due process protections. See Foucha, 504 U.S. at
80 ("Freedom from bodily restraint has always been at the core of the liberty protected by
the Due Process Clause from arbitrary governmental action.").

A cognate reading of the statutory language in K.S.A. 2020 Supp. 22-
3716(c)(1)(C) suggests the "lesser sentence" provision refers to a sentence less onerous
than the original sentence if—but only if—the original sentence was itself lawful. That
would likely avert the potential constitutional problems we have mentioned. Moreover, it
would avoid an anomalous result in which Brown (and like defendants) would be worse
off because a district court ostensibly sought to extend leniency in the form of a reduced
prison term—a decision that actually would thwart an otherwise meritorious challenge to
that term as illegal because of an overstated criminal history.

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 We do not presume to decide today that Roth and Sandoval can or cannot be
extended to preclude Brown's claim for relief in this appeal. Precisely because the issue
has not been raised and debated by the parties, we withhold any judgment. Our discussion
simply illustrates the outcome is less than obvious, and its resolution would undoubtedly
benefit from a full airing that has yet to take place. See United States v. Cronic, 466 U.S.
648, 655-56, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984) ("'The very premise of our
adversary system of criminal justice is that partisan advocacy on both sides of a case will
best promote the ultimate objective that the guilty be convicted and the innocent go
free.'") (quoting Herring v. New York, 422 U.S. 853, 862, 95 S. Ct. 2550, 45 L. Ed. 2d
593 [1975]); GTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375, 382-83, 100 S. Ct.
1194, 63 L. Ed. 2d 467 (1980) ("The clash of adverse parties 'sharpens the presentation of
issues upon which the court so largely depends for illumination of difficult . . .
questions."'). Because the State has not engaged the debate, we prefer to leave the entire
matter for another day in another case.

Conclusion

Brown's sentences for criminal threat and the robbery are vacated, and the cases
are remanded to the district court for resentencing in a manner consistent with this
opinion, including scoring the 1998 Missouri robbery conviction as a nonperson felony.

Sentences vacated and case remanded with directions.

***

POWELL, J. (concurring in part and dissenting in part): I join the majority's
opinion in full except for its conclusion that Brown's modified sentence of 75 months for
robbery is illegal because the district court incorrectly scored his 1998 Missouri robbery
conviction.

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 Brown's original sentence in 17CR773 for robbery was for 128 months in prison,
but the district court modified it downwards to 75 months upon its revocation of Brown's
probation. According to K.S.A. 2020 Supp. 22-3716(c)(1)(C), the district court has the
authority to impose "any lesser sentence" upon a revocation of an offender's probation.
The phrase "any lesser sentence" is not limited to a sentence that may have been
originally imposed but includes any sentence that is less than that originally imposed.
State v. McKnight, 292 Kan. 776, 782, 257 P.3d 339 (2011). As a result, our Supreme
Court has held that any new lesser sentence imposed by the district court after a probation
revocation is not subject to an illegal sentence challenge under K.S.A. 22-3504, even if a
portion of the original sentence was illegal. State v. Roth, 308 Kan 970, 971-72, 424 P.3d
529 (2018); State v. Sandoval, 308 Kan. 960, 960, 425 P.3d 365 (2018). Thus, any
illegality in Brown's original sentence no longer existed once the district court imposed a
modified sentence. Admittedly, the State never raised this objection, but I cannot join the
majority's declaration that Brown's modified sentence is illegal and order a correction of
this sentence. We lack the power to do so because Brown's new sentence is not subject to
an illegal sentence challenge. See Roth, 308 Kan. at 972; Sandoval, 308 Kan. at 960.

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