NOT DESIGNATED FOR PUBLICATION
No. 121,341
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ALFRED N. OBIERO,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; DAVID L. DAHL, judge. Opinion filed January 28, 2022.
Sentence vacated in part and case remanded with directions.
Alfred N. Obiero, appellant pro se.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before WARNER, P.J., MALONE and BUSER, JJ.
BUSER, J.: This is a pro se sentencing appeal brought by Alfred N. Obiero who
was convicted of aggravated battery while driving under the influence (DUI) of alcohol.
He raises two issues for our consideration. First, Obiero contends he is serving an illegal
sentence. In this regard, he argues the district court erroneously calculated his criminal
history score by improperly including certain prior DUI convictions in his criminal
history score. Second, Obiero claims the district court illegally sentenced him to a 36-
month postrelease supervision period.
1
Upon our review, we hold the district court did not err in calculating Obiero's
criminal history score. We find, however, that the district court imposed an illegal
postrelease supervision term at sentencing. Accordingly, we vacate the 36-month
postrelease supervision term and remand with directions for the district court to sentence
Obiero to a 24-month postrelease supervision term as provided by K.S.A. 2017 Supp. 22-
3717(d)(1)(B). Obiero's sentence is affirmed in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
In keeping with a plea agreement, Obiero pled guilty to aggravated battery while
DUI, in violation of K.S.A. 2017 Supp. 21-5413(b)(3)(A), (g)(2)(C). In return for this
plea, the State dismissed Obiero's remaining charges which included two additional
counts of aggravated battery while driving under the influence, driving while suspended,
and unlawfully operating a vehicle on the left side of the roadway. The State also agreed
to recommend that the district court grant a downward durational departure to 84 months'
imprisonment at sentencing.
At the plea hearing, the parties discussed the application of K.S.A. 2017 Supp. 21-
6811(c)(3) that governs the classification of prior DUI convictions when an individual is
subsequently convicted of aggravated battery while driving under the influence. That
statute provides:
"(3) If the current crime of conviction is for violation of K.S.A. 2017 Supp. 21-
5413(b)(3) [aggravated battery while DUI] . . . :
(A) The first prior adult conviction . . . [for DUI] shall count as one nonperson
felony for criminal history purposes . . . ; and
(B) each second or subsequent prior adult conviction . . . [for DUI] shall count as
one person felony for criminal history purposes." (Emphases added.) K.S.A. 2017 Supp.
21-6811(c)(3).
2
The parties expected that given Obiero's conviction for aggravated battery while
DUI, K.S.A. 2017 Supp. 21-6811(c)(3) would apply at time of sentencing.
A presentence investigation (PSI) report was prepared and calculated that Obiero's
criminal history score was A. The PSI report showed that Obiero had numerous prior
convictions, five of which were for DUI. As anticipated, the PSI investigator applied
K.S.A. 2017 Supp. 21-6811(c)(3) to Obiero's five prior DUI convictions, resulting in four
prior DUI convictions being scored as person felonies. The relevant entries showed:
• Entry 2: Kansas state DUI conviction on February 10, 2005 (Sedgwick
County) scored as an adult nonperson felony.
• Entry 3: Kansas municipal DUI conviction on April 14, 2005 (Wichita) scored
as an adult person felony.
• Entry 5: Kansas state DUI conviction on September 10, 2007 (Sedgwick
County) scored as an adult person felony.
• Entry 10: Oklahoma state DUI conviction on April 3, 2012 (Alfalfa County)
scored as an adult person felony.
• Entry 18: Kansas municipal DUI conviction on September 26, 2017
(Haysville) scored as an adult person felony.
Before sentencing, Obiero challenged his criminal history score as calculated in
the PSI report. Obiero disputed three prior convictions—entries 8, 10, and 11—claiming
he had "no recollection of the charges." Additionally, he challenged each prior DUI
conviction on multiple grounds. Relevant to this appeal, Obiero challenged whether the
predicate convictions for imposing K.S.A. 2017 Supp. 21-6811(c)(3)—the special
sentencing rule for classifying prior DUI convictions when subsequently convicted of
aggravated battery while DUI—were properly shown. Obiero also challenged whether
the Haysville DUI conviction listed in Entry 18 was void because the municipal court
lacked subject matter jurisdiction.
3
At sentencing, following lengthy argument, the district court struck the prior DUI
convictions listed in entries 3 and 10 but denied Obiero's remaining objections. The
district court ruled that Obiero's criminal history score was B based, in relevant part, on
scoring entries 5 and 18 as adult person felonies.
Upon finding Obiero's criminal history score was B, the district court followed the
recommendations of the plea agreement. The district court granted Obiero's motion for a
downward dispositional departure and sentenced him to 84 months' imprisonment with
36-months postrelease supervision. A journal entry memorialized the sentence. Later, the
district court filed an agreed-upon journal entry which corrected the erroneous 36-month
postrelease supervision term to reflect the statutorily mandated 24-month term.
Obiero appeals.
CALCULATION OF CRIMINAL HISTORY SCORE
On appeal, Obiero claims he is serving an illegal sentence because the district
court made two errors in calculating his criminal history score. First, he argues the district
court erred when it scored his prior DUI convictions as person felonies because the
statute at issue, K.S.A. 2017 Supp. 21-6811(c)(3), is ambiguous. Second, he asserts the
district court erred when it failed to strike the 2017 Haysville DUI conviction in
calculating his criminal history score because the municipal court was without
jurisdiction.
The State counters that our court does not have jurisdiction to consider Obiero's
appeal and that he failed to preserve the issue for appeal. Alternatively, the State argues
Obiero's challenges to his criminal history score are without merit. We will address the
State's jurisdictional and preservation arguments first.
4
Jurisdiction and Preservation
According to the State, "appellate courts lack jurisdiction to review an agreed
upon sentence imposed under the terms of a plea agreement that is approved by the
court."
Whether jurisdiction exists is a question of law over which our court's scope of
review is unlimited. State v. Smith, 304 Kan. 916, 919, 377 P.3d 414 (2016). An appellate
court has a duty to question jurisdiction on its own initiative. When the record discloses a
lack of jurisdiction, the appellate court must dismiss the appeal. State v. Delacruz, 307
Kan. 523, 529, 411 P.3d 1207 (2018).
The right to appeal is entirely statutory. Subject to certain exceptions, Kansas
appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the
manner prescribed by statutes. Smith, 304 Kan. at 919.
"Appellate jurisdiction is defined by statute; the right to appeal is neither a vested
nor a constitutional right. The only reference in the Kansas Constitution to appellate
jurisdiction demonstrates this principle, stating the Kansas Supreme Court shall have
'such appellate jurisdiction as may be provided by law.' Kan. Const., art. 3, § 3. Under
this provision, this court may exercise jurisdiction only under circumstances allowed by
statute; this court does not have discretionary power to entertain appeals from all district
court orders. [Citations omitted.]" Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597,
609-10, 244 P.3d 642 (2010).
See State v. Gill, 287 Kan. 289, 294, 196 P.3d 369 (2008).
Under K.S.A. 2020 Supp. 21-6820(c)(2): "On appeal from a judgment of
conviction entered for a felony committed on or after July 1, 1993, the appellate court
shall not review: . . . (2) any sentence resulting from an agreement between the state and
5
the defendant which the sentencing court approves on the record." On the other hand,
another statute, K.S.A. 2020 Supp. 22-3504(a), provides: "The court may correct an
illegal sentence at any time while the defendant is serving such sentence."
Our Supreme Court has held that because a defendant receives a sentence that was
the result of a plea agreement does not necessarily bar an appellate court's ability to
consider an illegal sentence claim. According to the Supreme Court: "This court has
reconciled the two statutes [K.S.A. 22-3504(1) and K.S.A. 2014 Supp. 21-6820(c)(2)] by
holding that an appellate court has jurisdiction to correct an illegal sentence even when it
was agreed to in a plea." State v. Quested, 302 Kan. 262, 264, 352 P.3d 553 (2015); see
also State v. Shull, 52 Kan. App. 2d 981, 986, 381 P.3d 499 (2016) (The "statutory
limitation [in K.S.A. 2015 Supp. 21-6820(c)(2)] on appellate jurisdiction does not
preclude appellate review of a claim of an illegal sentence.").
In the present case, Obiero argues that the sentence as pronounced is illegal
because two prior DUI convictions used in calculating his criminal history score, listed in
PSI entries 5 and 18, were improperly classified as person felony crimes. In State v. Neal,
292 Kan. 625, 631, 258 P.3d 365 (2011), our Supreme Court concluded the defendant's
challenge to his criminal history score was "necessarily a challenge to his sentence that
the history score helped produce." The Neal court found: "If the history score is incorrect,
it follows that [the] resulting sentence cannot conform to the statutory provision in the
term of the punishment authorized and, consequently, is an illegal sentence." 292 Kan. at
631. We conclude that our court has jurisdiction to review Obiero's illegal sentence
claim.
Similarly, with regard to whether Obiero preserved this issue for appeal, we are
persuaded that we may consider this claim because a "court may correct an illegal
sentence at any time," including for the first time on direct appeal. K.S.A. 2020 Supp. 22-
6
3504(a). See State v. Hambright, 310 Kan. 408, 411, 447 P.3d 972 (2019). We will
consider this issue.
K.S.A. 2017 Supp. 21-6811(c)(3) Is Not Ambiguous
Obiero contends he is serving an illegal sentence because the special sentencing
statute upon which he was sentenced, K.S.A. 2017 Supp. 21-6811(c)(3), "is markedly
ambiguous." Employing rules of statutory construction, Obiero argues that prior
municipal court DUI entries should not have been used to enhance his sentence because
they were nonselect class B nonperson misdemeanors. For its part, the State responds:
"To the contrary, [Obiero's] brief exposes that there is zero ambiguity within K.S.A. 21-
6811(c)(3); rather, defendant seeks to create ambiguity by conflating the specific rule of
K.S.A. 21-6811(c)(3) with the more general rule for scoring prior misdemeanors in
K.S.A. 21-6810(d)(6). This is not how statutory interpretation works."
Since this issue requires statutory interpretation, our court's review is unlimited.
State v. Alvarez, 309 Kan. 203, 205, 432 P.3d 1015 (2019). Whether a sentence is illegal
within the meaning of K.S.A. 22-3504 is a question of law over which the appellate court
also has unlimited review. State v. Sartin, 310 Kan. 367, 369, 446 P.3d 1068 (2019). A
sentence is illegal under K.S.A. 22-3504 when: (1) it is imposed by a court without
jurisdiction; (2) it does not conform to the applicable statutory provisions, either in
character or the term of punishment; or (3) it is ambiguous about the time and manner in
which it is to be served. Hambright, 310 Kan. at 411.
The most fundamental rule of statutory construction is that the intent of the
Legislature governs if that intent can be ascertained. State v. LaPointe, 309 Kan. 299,
314, 434 P.3d 850 (2019). An appellate court must first attempt to ascertain legislative
intent through the statutory language enacted, giving common words their ordinary
meanings. State v. Ayers, 309 Kan. 162, 163-64, 432 P.3d 663 (2019). When a statute is
7
plain and unambiguous, an appellate court should not speculate about the legislative
intent behind that clear language, and it should refrain from reading something into the
statute that is not readily found in its words. 309 Kan. at 164. Where there is no
ambiguity, the court need not resort to statutory construction. Only if the statute's
language or text is unclear or ambiguous does the court use canons of construction or
legislative history to construe the Legislature's intent. State v. Pulliam, 308 Kan. 1354,
1364, 430 P.3d 39 (2018).
Obiero challenges K.S.A. 2017 Supp. 21-6811(c)(3) as being ambiguous. That
statutory provision provides:
"(3) If the current crime of conviction is for a violation of K.S.A. 2017 Supp. 21-
5413(b)(3) [aggravated battery while DUI], and amendments thereto:
(A) The first prior adult conviction, diversion in lieu of criminal prosecution or
juvenile adjudication for the following count as one nonperson felony for criminal history
purposes: (i) Any act described in K.S.A. 8-2,144 or 8-1567 or K.S.A. 2017 Supp. 8-
1025, and amendments thereto; or (ii) a violation of a law of another state or an ordinance
of any city, or resolution of any county, which prohibits any act described in K.S.A. 8-
2,144 or 8-1567 or K.S.A. 2017 Supp. 8-1025, and amendments thereto; and
(B) each second or subsequent prior adult conviction, diversion in lieu of
criminal prosecution or juvenile adjudication for the following shall count as one person
felony for criminal history purposes: (i) Any act described in K.S.A. 8-2,144 or 8-1567
or K.S.A. 2017 Supp. 8-1025, and amendments thereto; or (ii) a violation of a law of
another state or an ordinance of any city, or resolution of any county, which prohibits any
act described in K.S.A. 8-2,144 or 8-1567 or K.S.A. 2017 Supp. 8-1025, and amendments
thereto." K.S.A. 2017 Supp. 21-6811(c)(3).
In Obiero's view, "this special sentencing provision is ambiguous" because the
"vocabulary fails to specify the types of prior DUI convictions that should be considered
and scored under its provision, making the statute prone to more than one reasonable
interpretation." He contends the statute could be interpreted as "either all prior DUI
8
convictions are to be scored" or "specific prior DUI convictions that constitute criminal
history categories as outlined in K.S.A. 21-6810 are to be scored." See K.S.A. 2017
Supp. 21-6810(d)(6) ("All person misdemeanors, class A nonperson misdemeanors and
class B select nonperson misdemeanors," and all municipal ordinance and county
resolution violations comparable to such misdemeanors, shall be considered and scored.).
Obiero then argues that when K.S.A. 2017 Supp. 21-6811(c)(3) is "read in
conjunction" with K.S.A. 2017 Supp. 21-6810(d)(6), "class B misdemeanor DUI
convictions must be excluded from consideration . . . for such convictions are not scored
for criminal history purposes." He concludes: "Although K.S.A. 21-6811(c)(3) does not
specifically include language clarifying which types of prior convictions under K.S.A. 8-
1567 should be considered for enhancement, K.S.A. 21-6810(d)(6) mandates that such
prior convictions be misdemeanors specifically recited under its subsection that pertains
to K.S.A. 8-1567, to-wit: class A nonperson misdemeanor convictions."
As the State counters, the statute is not ambiguous. K.S.A. 2017 Supp. 21-
6810(d)(6) is a general classification statute that broadly provides a list of which prior
misdemeanor convictions "shall be considered and scored" as part of a criminal history.
Admittedly, apart from K.S.A. 2017 Supp. 21-6811(c)(3)—which is the more specific
classification statute since it deals with prior DUI convictions—under the generally
applicable statute, K.S.A. 2017 Supp. 21-6810(d)(6), a first DUI offense would not be
scored in an offender's criminal history because it is not a class B nonperson select
misdemeanor. See K.S.A. 2017 Supp. 8-1567(b)(1)(A) and K.S.A. 2017 Supp. 21-
6810(b) (defining class B nonperson select misdemeanor).
However, the prefatory language of K.S.A. 21-6811 refers to and specifically
states that the provisions of K.S.A. 2017 Supp. 21-6810 should also be used to determine
criminal history classifications: "In addition to the provisions of K.S.A. 2017 Supp. 21-
6810, and amendments thereto, the following shall apply in determining an offender's
9
criminal history classification as contained in the presumptive sentencing guidelines
. . . ." (Emphasis added.) K.S.A. 2017 Supp. 21-6811. These additional provisions govern
special sentencing rules that are used to determine an offender's criminal history,
specifying how some prior convictions are scored and applying special rules if the current
crime of conviction is listed. See K.S.A. 2017 Supp. 21-6811. Because Obiero's current
crime of conviction is aggravated battery while DUI, the specific provisions of K.S.A.
2017 Supp. 21-6811(c)(3) "shall apply." K.S.A. 2017 Supp. 21-6811.
This understanding of the interplay between the general classification statute,
K.S.A. 2017 Supp. 21-6810(d)(6) and the specific classification statute, K.S.A. 2017
Supp. 21-6811(c)(3), is consonant with our rules of statutory construction. See Miller v.
Board of Wabaunsee County Comm'rs, 305 Kan. 1056, 1066, 390 P.3d 504 (2017)
(statutes dealing with the same subject—those that are in pari materia—should be
interpreted harmoniously when possible.); State v. Kinder, 307 Kan. 237, 241, 408 P.3d
114 (2018) (when there is a conflict between statutes, a specific statute controls over a
general statute).
The language of K.S.A. 2017 Supp. 21-6811(c)(3)(A) is clear, unambiguous, and
specific. Under this statute—which applies when the current crime of conviction is
aggravated battery while DUI—the first prior adult conviction for "[a]ny act described"
in the DUI statutes "shall count as one nonperson felony for criminal history purposes."
(Emphasis added.) K.S.A. 2017 Supp. 21-6811(c)(3)(A). Under K.S.A. 2017 Supp. 21-
6811(c)(3)(B), however, "each second or subsequent prior adult conviction" for "[a]ny
act described" in the DUI statutes "shall count as one person felony for criminal history
purposes." (Emphasis added.) Applying this statute to the facts of this case, Obiero's prior
DUI convictions were properly included and classified for criminal history scoring
purposes.
10
We find support for our holding in State v. Briggs, 24 Kan. App. 2d 621, 628-29,
950 P.2d 273 (1997). In Briggs, our court addressed this issue under the predecessors of
K.S.A. 21-6810(d)(6) (K.S.A. 21-4710[d][7]) and K.S.A. 21-6811(c)(3) (K.S.A. 21-
4711[c]).
In Briggs, the defendant made an argument similar to Obiero:
"Briggs reads K.S.A. 21-4710 as not allowing the use of municipal convictions
when they are class B nonperson misdemeanors other than select class B nonperson
misdemeanors. Briggs reasons that because K.S.A. 21-4710 does not provide for the use
of municipal class B nonperson misdemeanors, his municipal conviction for driving
under the influence should not be used to enhance his sentence under K.S.A. 21-4711(c)."
24 Kan. App. 2d at 629.
Our court concluded that Brigg's reading of the statutes was "too narrow," 24 Kan.
App. 2d at 629, reasoning that K.S.A. 21-4711(c) was an exception to the general
criminal history scoring rules and, when reading the applicable statutes together,
municipal convictions may be used under the special sentencing rule:
"K.S.A. 21-4711(c) provides an exception to the general rules of criminal history
scoring that applies to prior convictions under K.S.A. 1996 Supp. 8-1567 when the
current crime of conviction is involuntary manslaughter committed while driving under
the influence pursuant to K.S.A. 21-3404(b). K.S.A. 21-4711(c) does not provide any
indication that municipal convictions for driving under the influence should be treated
differently from state convictions other than to cite to K.S.A. 1996 Supp. 8-1567. K.S.A.
1996 Supp. 8-1567(k)(2), however, specifically provides that a conviction under that
statute includes municipal convictions. Reading these statutes together, municipal
convictions for driving under the influence may be used under the special criminal
history provision of K.S.A. 21-4711(c). See State v. Le, 260 Kan. 845, 847-48, 926 P.2d
638 (1996) ('[S]everal provisions of an act, in pari materia, must be construed together
with a view of reconciling and bringing them into workable harmony and giving effect to
the entire act if it is reasonably possible to do so.')." Briggs, 24 Kan. App. at 629.
11
Although in Briggs we were considering the special sentencing provisions relating
to involuntary manslaughter while DUI, the reasoning is analogous. Similar to the special
sentencing statute at issue in Briggs, K.S.A. 2017 Supp. 21-6811(c)(3) is an exception to
the general rule of criminal history classification. It only applies when the current crime
of conviction is aggravated battery while DUI. And like the special sentencing statute in
Briggs, K.S.A. 2017 Supp. 21-6811(c)(3) does not provide any indication that municipal
convictions for DUIs should be treated differently from state convictions. In fact, our
court has more recently found "K.S.A. 2016 Supp. 8-1567(i) 'provides that a defendant's
municipal court DUI conviction occurring on or after July 1, 2001, may be counted as a
prior DUI conviction if the ordinance prohibits the acts that K.S.A. 8-1567 prohibits.'"
State v. Lamone, 54 Kan. App. 2d 180, 184, 399 P.3d 235 (2017).
Obiero does not challenge his prior municipal convictions as not being comparable
to an act that K.S.A. 2017 Supp. 8-1567 prohibits. His only challenge is that K.S.A. 2017
Supp. 21-6811(c)(3) is ambiguous. We are persuaded that Obiero's challenge to his
criminal history score in this regard is lacking in merit.
Obiero's Haysville DUI Conviction Was Properly Scored
Obiero contends the district court erred in scoring his Haysville DUI conviction
(Entry 18) because the Haysville Municipal Court lacked jurisdiction to prosecute what
he claims should have been charged as a felony DUI in district court. The State counters
that Kansas law permitted the Haysville DUI to be prosecuted as a misdemeanor in the
municipal court.
Obiero cites State v. Elliott, 281 Kan. 583, 586, 133 P.3d 1253 (2006), in support
of his argument. In Elliott, the defendant was convicted of DUI with five prior DUI
convictions. Four of the five prior DUI convictions were municipal convictions. At
sentencing, the defendant argued that several of his prior DUI convictions were
12
improperly classified as misdemeanors in the municipal court, which deprived the
municipal court of jurisdiction because the convictions should have been classified as
felonies. The district court agreed and excluded two of the prior municipal DUI
convictions from the defendant's criminal history. The State appealed, and our Supreme
Court affirmed, finding the defendant could collaterally attack the validity of the
misdemeanor DUI convictions when those convictions enhance the sentence in the
current prosecution. 281 Kan. at 588-89.
Since Elliott, however, the Legislature has amended the statute to provide a third
DUI conviction is a felony "if the person has a prior conviction which occurred within the
preceding 10 years, not including any period of incarceration." K.S.A. 2017 Supp. 8-
1567(b)(1)(D). Otherwise, a third conviction for DUI is a nonperson misdemeanor.
K.S.A. 2017 Supp. 8-1567(b)(1)(D). This amendment became effective in 2011. See L.
2011, ch. 105, § 19. Relevant to this appeal, this statute was in effect at the time Obiero
was convicted of DUI in the Haysville Municipal Court.
Obiero argues:
"At the time of his February 14, 2016, DUI arrest in Haysville, KS, [he] had at
least two prior DUI conviction on his record that qualified as predicate offenses for
enhancement . . . .
"Consequently, for sentencing purposes, the 2016 Haysville DUI transgression is
clearly Mr. Obiero's third or subsequent offense inside the 10-year time frame of his 2007
felony DUI conviction. The third DUI offense within the preceding 10 years is a felony."
Obiero's claim of error is predicated on the assertion that one of his prior DUI
convictions occured within the preceding 10 years of his Haysville DUI conviction. In
support of his claim, Obiero asserts his Haysville DUI arrest occurred on February 14,
2016. Of note, this date relates to Obiero's arrest not his conviction. Relying on this arrest
13
date, Obiero argues "the 2016 Haysville DUI transgression" occurred within 10 years of
his prior DUI conviction.
Obiero's PSI report, however, states that his Haysville DUI "Conviction Date"
occurred on September 26, 2017. This date is supported by Obiero's subsequent additions
to the record on appeal. The journal entry for Obiero's Haysville DUI conviction
similarly states he was convicted on September 26, 2017. The PSI report prepared after
his Haysville DUI conviction specifically found the Haysville conviction was not a
felony: "[T]his is Mr. Obiero's Fourth DUI conviction, however his First for sentencing
purposes (missing the ten year cutoff by two weeks)." The PSI report recommended
Obiero "be sentenced as a First DUI offender."
As the State points out, the only information in the record that is contrary to the
PSI report is the charging affidavit in this case, which listed the conviction date for
Obiero's Haysville DUI as March 1, 2016. Nevertheless, Obiero does not allege this date
should apply, nor does he assert any specific date should apply.
As the party making this claim, Obiero has the burden to designate a record
sufficient to present his argument to this court and establish his claims. Friedman v.
Kansas State Bd. of Healing Arts, 296 Kan. 636, 644, 294 P.3d 287 (2013); see also State
v. Miller, 308 Kan. 1119, 1157, 427 P.3d 907 (2018) ("The burden is on the party making
a claim of error to designate facts in the record to support that claim; without such a
record, the claim of error fails."). Obiero's argument is unsuccessful because he has failed
to designate a record sufficient to support his claim that he was convicted of his third
DUI within 10 years of his prior DUI conviction. Moreover, our independent review of
the record on appeal shows Obiero's Haysville conviction occurred more than 10 years
after his previous DUI conviction on September 10, 2007.
14
Prior to his Haysville conviction, Obiero had been convicted of four DUIs, three in
Kansas and one in Oklahoma. At sentencing in this case, however, the district court
agreed to strike two prior DUI convictions: Obiero's municipal DUI conviction in
Wichita (Entry 3) and his Oklahoma DUI conviction (Entry 10). Obiero does not
challenge these strikes on appeal. See State v. Arnett, 307 Kan. 648, 650, 413 P.3d 787
(2018) (an issue not briefed is deemed waived or abandoned). Accordingly, Obiero's
remaining three Kansas DUI convictions are the only valid convictions for criminal
history purposes.
At the time of his Haysville conviction on September 26, 2017, Obiero's
applicable, prior DUI convictions occurred on February 10, 2005, and September 10,
2007. Based on the September 26, 2017 Haysville DUI conviction date, the municipal
court would have had jurisdiction over Obiero's DUI as a misdemeanor because his
Haysville DUI conviction did not occur within 10 years of his prior September 10, 2007
conviction. Rather, his Haysville conviction occurred 10 years and 16 days after his prior
DUI conviction on September 10, 2007. As the Haysville PSI report noted, this DUI was
Obiero's first for sentencing purposes because he "miss[ed] the ten year cutoff by two
weeks."
Accordingly, we hold the Haysville Municipal Court had jurisdiction to preside
over Obiero's DUI because it was a misdemeanor offense under K.S.A. 2017 Supp. 8-
1567(b)(1)(D).
SENTENCE OF POSTRELEASE SUPERVISION
For his final issue, Obiero contends the district court erred by incorrectly
sentencing him to 36 months' postrelease supervision. He asserts this is an illegal
sentence. He asks our court to remand the case to the district court "with directions to
15
comply with the mandate of K.S.A. 22-3717(d)(1)(B) in resentencing Mr. Obiero to the
proper 24 months postrelease supervision."
In response, the State concedes the error, but points out that after sentencing, the
parties jointly submitted an agreed-upon nunc pro tunc order that corrected the prior
erroneous sentencing journal entry by ordering that Obiero serve a 24-month postrelease
supervision period. According to the State, the sentencing error was corrected and "[n]o
remand to correct the period of postrelease supervision is necessary as defendant has
already obtained the only relief to which he is entitled."
It is uncontroverted that at sentencing, the district court sentenced Obiero to 36-
month postrelease supervision. It is also uncontroverted that this sentence was illegal
because Obiero was convicted of a nondrug severity level 5 person felony. As provided
in K.S.A. 2017 Supp. 22-3717(d)(1)(B), under the circumstances of this conviction,
Obiero should have been sentenced to 24-month postrelease supervision. Finally, it is
uncontroverted that the district court memorialized the erroneous 36-month period in the
sentencing journal entry and that an agreed-upon nunc pro tunc order was filed later,
which properly stated that Obiero should serve a 24-month postrelease supervision term.
As mentioned earlier, a sentence is illegal under K.S.A. 2020 Supp. 22-3504(c)(1)
when it "does not conform to the applicable statutory provision, either in character or
punishment." Postrelease supervision is included as part of a complete sentence. State v.
Gaudina, 284 Kan. 354, 358, 160 P.3d 854 (2007). Of particular relevance to this appeal,
"[a] criminal sentence is effective when pronounced from the bench at the sentencing
hearing; it does not derive its effectiveness from the journal entry." State v. Potts, 304
Kan. 687, 707-08, 374 P.3d 639 (2016); State v. Ortiz, No. 116,478, 2017 WL 4558408,
at *2 (Kan. App. 2017) (unpublished opinion).
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The agreed-upon procedure employed by the district court to modify Obiero's
postrelease supervision sentence by filing a corrective nunc pro tunc order without
resentencing the defendant in court was error. In Potts, our Supreme Court quoted State
v. Vanwey, 262 Kan. 524, Syl. ¶ 2, 941 P.2d 365 (1997), for the proposition: "'A nunc
pro tunc order under K.S.A. 22-3504(2) may only be used to correct actual clerical errors
or errors arising from oversight or omission.'" Potts, 304 Kan. at 709. Here, the illegal
postrelease supervision period announced at sentencing was an illegal sentence that could
not be cured or corrected by the filing of an appropriate journal entry.
Accordingly, we vacate the 36-month postrelease supervision term and remand
with directions for the district court to resentence Obiero to a 24-month postrelease
supervision term as provided by K.S.A. 2017 Supp. 22-3717(d)(1)(B).
Sentence vacated in part and the case is remanded with directions.
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