NOT DESIGNATED FOR PUBLICATION
No. 124,433
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
CODY MICHAEL LAMIA-BECK,
Appellant.
MEMORANDUM OPINION
Appeal from Pottawatomie District Court; JEFFREY R. ELDER, judge. Opinion filed February 3,
2023. Affirmed.
Peter Maharry, of Kansas Appellate Defender Office, for appellant.
Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before CLINE, P.J., ISHERWOOD, J., and PATRICK D. MCANANY, S.J.
PER CURIAM: Cody Michael Lamia-Beck plead guilty to second-degree murder
and the parties agreed to recommend the aggravated sentence in the appropriate grid box.
Lamia-Beck's sentence should have been imposed from the non-drug grid block where
the crime severity rating of 1 and Lamia-Beck's criminal history score of I intersect. But
the district court erroneously looked to the corresponding grid block on the drug grid and
imposed its aggravated term of 154 months. The State later noticed the error and moved
to correct what it alleged was an illegal sentence. The district court granted the motion
and imposed a 165-month sentence, the aggravated number in the appropriate non-drug
grid block. Lamia-Beck appeals arguing the district court lacked subject matter
1
jurisdiction to impose the 165-month sentence because the 154-month sentence was not
illegal given that it fell within the sentencing range of the proper grid block. The district
court properly corrected the sentence. By statute, absent any departure, the sentence
imposed must hail from the precise grid box corresponding with an offender's criminal
history and the severity level of their crime of conviction. The fact the duration of the
original, faulty sentence fell within the proper range is of no moment. It derived from the
wrong grid and therefore did not conform with the governing statutory provision. As a
result, it was illegal and could not be permitted to stand.
FACTUAL AND PROCEDURAL BACKGROUND
The State charged Cody Michael Lamia-Beck with one count of first-degree
murder or, in the alternative, one count of second-degree murder for the death of Jacob
Dillan Bouck. Lamia-Beck ultimately pled no contest to one count of second-degree
murder, a severity level 1 person felony, and the parties jointly agreed to recommend the
aggravated sentence in the appropriate grid box. The district court accepted the plea and
proceeded to sentencing.
At the sentencing hearing, the court found, and the parties agreed, that Lamia-
Beck had a criminal history score of I. The court then sentenced Lamia-Beck to 154
months in the Department of Corrections. The court explained: "Having been convicted
of murder in the second degree in violation of 21-5403, a severity Level 1 person felony,
your criminal history score being 'I', I will impose, frankly, the maximum sentence the
law would allow, which is 154 months."
Roughly three days later, the State filed a motion to correct sentence. It asserted
that Lamia-Beck's sentence was illegal because the district court erroneously used the
drug grid, rather than the non-drug grid, when imposing Lamia-Beck's sentence. Lamia-
Beck responded and argued his sentence was not illegal because despite the court's use of
2
the wrong grid, the term imposed, 154 months, still fell within the range set forth in the
appropriate box, 147-165.
The district court held a hearing on the motion and the State argued that the court
should resentence Lamia-Beck in order to correct an illegal sentence. As support, it first
noted that the 154-month sentence failed to place Lamia-Beck on equal footing with
others convicted of second-degree murder. It next suggested that using the drug grid "was
an obvious clerical error" and intimated the PSI, which also used the drug grid in its
sentencing recommendation, failed to track K.S.A. 2018 Supp. 21-6813 and the
sentencing statutes. Finally, the State noted that the 154-month sentence violated the plea
agreement.
Lamia-Beck remained firm in his position that the sentence was not illegal. He
conceded that the plea agreement contemplated a term of 165 months, the aggravated
number in the appropriate box, but argued his 154-month sentence still fell within the
range reflected in the non-drug grid box. Lamia-Beck asserted that neither a clerical error
nor a violation of the plea agreement met the limited criteria for an illegal sentence, thus,
the court lacked jurisdiction to modify it.
After hearing arguments, the district court explained: "You know, these sentences
are set by statute, and the grid-block for the defendant's conviction should have been the
mitigate 147, median 155, and aggravated 165, and the parties—that's the grid-block that
should have been used. An incorrect one was used. It's an illegal sentence." The court
granted the State's motion and resentenced Lamia-Beck to a prison term of 165 months.
Lamia-Beck timely brings the matter to us to analyze the legality of the district
court's decision.
3
LEGAL ANALYSIS
The district court properly corrected Lamia-Beck's illegal sentence.
On appeal, Lamia-Beck maintains that his original sentence was not illegal and,
because it was not, the district court lacked jurisdiction to resentence him to a prison term
of 165 months. The State holds true to its position that the initial 154-month sentence was
illegal because it was not a product of the proper non-drug grid box.
Standard of Review
This court exercises unlimited review over issues that question the legality of a
sentence. State v. Sartin, 310 Kan. 367, 369, 446 P.3d 1068 (2019). We also have
unlimited review over jurisdictional questions. State v. Lundberg, 310 Kan. 165, 170, 445
P.3d 1113 (2019). Finally, in so far as this issue requires interpretation of the relevant
statutes, we exercise unlimited review over those matters as well. Jarvis v. Dept. of
Revenue, 312 Kan. 156, 159, 473 P.3d 869 (2020). "All Kansas courts use the same
starting point when interpreting statutes: The Legislature's intent controls. To divine that
intent, courts examine the language of the provision and apply plain and unambiguous
language as written." 312 Kan. at 159. In doing so, courts must give "common words
their ordinary meaning." State v. Ryce, 303 Kan. 899, 906, 368 P.3d 342 (2016). "If the
Legislature's intent is not clear from the language, a court may look to legislative history,
background considerations, and canons of construction to help determine legislative
intent." Jarvis, 312 Kan. at 159.
Kansas felonies are classified as either grid, off-grid, or nongrid. State v. Fowler,
311 Kan. 136, 139, 457 P.3d 927 (2020). Sentences for grid felonies are then further
compartmentalized in either the drug grid or the non-drug grid. 311 Kan. at 140. See
K.S.A. 2021 Supp. 21-6804; K.S.A. 2021 Supp. 21-6805. The grids have two axes, with
4
the horizontal axis determined by the offender's criminal history score and the vertical
axis determined by the crime's severity level. 311 Kan. at 140. These axes intersect to
form "grid block[s]," which "sets a presumptive sentencing range and indicates a
presumptive disposition of either imprisonment or nonimprisonment." 311 Kan. at 140. A
presumptive sentence is "the sentence provided in a grid block for an offender classified
in that grid block by the combined effect of the crime severity ranking of the offender's
current crime of conviction and the offender's criminal history." K.S.A. 2021 Supp. 21-
6803(q). The grid blocks contain three numbers. Generally, sentencing recommendations
correspond with the middle number and the higher and lower numbers are reserved for
aggravating or mitigating circumstances. K.S.A. 2021 Supp. 21-6804(e)(1); K.S.A. 2021
Supp. 21-6805(c)(1). "'The sentencing court has discretion to sentence at any place within
the sentencing range.'" 311 Kan. at 140 (quoting K.S.A. 2015 Supp. 21-6804[e][1]).
At the original sentencing proceeding, the district court appeared to believe the
appropriate grid block for Lamia-Beck carried an aggravated term of 154 months. This
misunderstanding may have been a product of the original presentence investigation
(PSI) report. That report conveyed that the sentencing range for Lamia-Beck's second-
degree murder conviction, with a criminal history score of I, was between 138 and 154
months. That range mistakenly correlated with the drug grid rather than the non-drug
grid. K.S.A. 2018 Supp. 21-6804; K.S.A. 2018 Supp. 21-6805.
After the court imposed a prison term of 154 months, it granted the State's motion
to correct an illegal sentence and resentenced Lamia-Beck to the aggravated number in
the non-drug grid box. So the issue we are called upon to resolve is whether a sentence is
illegal if the district court uses the wrong sentencing grid but the sentence imposed
nevertheless falls within the sentencing range of the proper grid.
Pursuant to K.S.A. 22-3504(c)(1), an illegal sentence is:
5
"'(1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not
conform to the applicable statutory provision, either in character or the term of authorized
punishment; or (3) a sentence that is ambiguous with respect to the time and manner in
which it is to be served.'" State v. Hambright, 310 Kan. 408, 411, 447 P.3d 972 (2019)
(quoting State v. Gilbert, 299 Kan. 797, 801, 326 P.3d 1060 [2014]).
Unless a sentence is illegal or contains a clerical or arithmetic error, a district court
may not resentence the offender because the court loses subject matter jurisdiction once
the sentence is pronounced from the bench. State v. Johnson, 309 Kan. 992, 996, 441
P.3d 1036 (2019). See K.S.A. 2021 Supp. 21-6820(i). But a district court may correct an
illegal sentence at any time. K.S.A. 2021 Supp. 22-3504(a)-(b).
Here, the district court pronounced the 154-month sentence, which fell within the
sentencing range of the appropriate grid box, but then later resentenced Lamia-Beck to
165 months in prison after concluding the original sentence was illegal. Lamia-Beck now
argues it is that new, 165-month sentence that is illegal because the district lacked
jurisdiction to impose it and offers a dual pronged argument in support of his contention.
First, Lamia-Beck contends that a sentencing error does not offer legitimate
grounds for resentencing. He directs us to two cases to assist with the analysis, beginning
with State v. McKnight, 292 Kan. 776, 257 P.3d 339 (2011). In that case, McKnight
pleaded guilty to possession of marijuana with intent to distribute. The district court
imposed a 30-month prison term but suspended the sentence and granted McKnight 18
months of probation. The court also ordered McKnight to serve 24 months of postrelease
supervision. McKnight's probation was ultimately revoked and the court imposed a
modified prison sentence of 22 months without postrelease supervision. The latter
modification was made because the court believed it could not impose postrelease
supervision if the revocation of McKnight's probation stemmed from mere technical
violations. The State filed a motion to correct an illegal sentence. At a hearing on the
motion, the district court explained it made a mistake when it eliminated postrelease
6
supervision and then modified McKnight's sentence to reattach that 24-month obligation.
McKnight appealed, this court affirmed, and the Kansas Supreme Court granted review
but reversed the decision of this court. It found that the pronouncement from the bench
controlled, regardless of the court's intent. 292 Kan. at 783; see also Abasolo v. State, 284
Kan. 299, 310, 160 P.3d 471 (2007) (noting "a sentence is effective once it is announced
from the bench, regardless of the court's intent at the time of pronouncement"); State v.
Robinson, No. 117,173, 2018 WL 1545677, at *2 (Kan. App. 2018) (unpublished
opinion) (noting "intent matters not at all" and "[w]hat the sentencing court may have
intended is irrelevant").
In support of its conclusion, the McKnight court explained that under K.S.A. 22-
3716(b), a trial court could "require the defendant to serve the sentence imposed, or any
lesser sentence" following a probation revocation. 292 Kan. at 780. It determined that the
district court's pronouncement of sentence at McKnight's revocation hearing, which did
not include postrelease supervision, was properly characterized as a "lesser sentence" and
therefore not illegal. It clarified that it was irrelevant whether the district court was
mistaken and reversed the district court's after-the-fact imposition of postrelease
supervision. 292 Kan. at 783.
Lamia-Beck next directs our focus to State v. Masterson, No. 121,153, 2020 WL
4722997 (Kan. App. 2020) (unpublished opinion). There, Masterson pleaded guilty to
three counts of sexual exploitation of a child and the parties recommended an upward
durational departure based on three factors. At sentencing, and with the consent of both
parties, the district court imposed the standard 32-month sentences for each conviction. It
then ordered the sentences in counts I and II to run consecutive while the sentence in
count III would run concurrently, resulting in a total sentence of 64 months. The court
then departed upward and imposed a 105-month sentence. 2020 WL 4722997, at *2.
7
Masterson filed a motion to correct an illegal sentence arguing the district court
erred by failing to upwardly depart on each individual count. He also asserted that, when
recalculating his sentence, the district court could only correct the illegal departure and
could not modify the legal and consecutive 32-month sentences in counts I and II,
thereby requiring the court to impose a total sentence of 64 months. The State conceded
the "mechanics" of the departure were unlawful, and the district court vacated
Masterson's sentence. 2020 WL 4722997, at *2. It reimposed a total prison term of 105
months by upwardly departing on count I for a sentence of 53 months and on count II
with a sentence of 52 months. Masterson appealed to this court and argued the district
court erred because it did not have jurisdiction to vacate his legal sentences in counts I, II
and III. This court reversed and remanded to the district court with instructions to impose
a 64-month controlling sentence because, even though "the district court mistakenly
failed to depart on the individual sentences it imposed on Masterson," the 32-month
consecutive sentences were still legal sentences and could not be disturbed on appeal.
2020 WL 4722997, at *10, 13.
In these cases, it was clear that mere sentencing errors, in and of themselves, did
not provide sufficient justification for the district court to later modify a sentence.
Instead, the appropriate analysis was to consider whether the sentence, regardless of any
potential mistake, was illegal. As such, Lamia-Beck is correct that we may not find the
district court acted appropriately because it was simply correcting a mistake. Thus, we
must also consider whether the 154-month sentence was illegal as defined by K.S.A.
2021 Supp. 22-3504(c)(1).
Lamia-Beck's second argument for why his original 154-month sentence was not
illegal is that it fell within the presumptive sentencing range identified in the appropriate
non-drug grid block. As support, he cites to K.S.A. 2021 Supp. 21-6820, which provides
that an appellate court may not review a sentence arising from a felony conviction if the
sentence "is within the presumptive sentence for the crime." K.S.A. 2021 Supp. 21-
8
6820(c)(1). He also highlights several cases in which the appellate court found the district
court erred by disturbing a presumptive sentence.
In State v. Guder, 293 Kan. 763, 267 P.3d 751 (2012), Guder pleaded guilty to
manufacturing a controlled substance, cultivating marijuana, four counts of criminal
possession of a weapon, and one count of possession of drug paraphernalia. This court
reversed Guder's manufacturing sentence and remanded for the district court to
resentence him in accordance with the appropriate crime severity level. On remand, the
district court resentenced Guder to an appropriate sentence on the manufacturing charge,
but also modified his sentence for possession of drug paraphernalia from concurrent to
consecutive. Guder appealed, this court affirmed, and the Kansas Supreme Court granted
review.
The court explained that, prior to the Legislature enacting the Kansas Sentencing
Guidelines Act (KSGA) in 1992, "district courts had considerable discretion to modify
sentences following pronouncement from the bench." 293 Kan. at 765. They were free to
resentence on all counts even when an appellate court remanded for resentencing on one
count. Guder, 293 Kan. at 765. But with the enactment of the KSGA, district courts were
only permitted to resentence on the specific sentence that was vacated. Accordingly,
Guder's case was reversed and remanded because the district court overstepped its
resentencing boundaries. 293 Kan. at 767.
Lamia-Beck also cites to State v. Warren, 307 Kan. 609, 609-10, 412 P.3d 993
(2018), and State v. Moore, 309 Kan. 825, 828-29, 441 P.3d 22 (2019), both of which cite
Gruder and involve similar scenarios where the district court improperly modified
sentences that were not vacated on appeal. But these cases have limited applicability
because the initial determination—whether to even vacate—is where our focus lies, not
the appropriate boundaries for resentencing upon remand.
9
We find State v. Hankins, 304 Kan. 226, 372 P.3d 1124 (2016), useful in resolving
the issue before us. In that case, Hankins pleaded guilty to several felonies and his PSI
revealed he had a criminal history score of G based on two prior misdemeanors and one
nonperson felony. Based on this score, the district court informed Hankins that the
presumptive sentence range for his primary offense was 68 to 77 months and sentenced
him to 68 months. Hankins pursued then dismissed a direct appeal and filed a motion to
correct an illegal sentence arguing the Oklahoma felony contributing to his criminal
history score of G should not have been included because he received a deferred
judgment, not a conviction, for that offense. The Kansas Supreme Court agreed, vacated
Hankins' sentence, and remanded for the district court to sentence him using the proper
criminal history score.
Relevant to this appeal, the State argued in Hankins that a remand was
unnecessary because Hankins' original sentence, 68 months, fell within the presumptive
range of the appropriate grid box which did not include Hankins' Oklahoma felony in his
criminal history. Put differently, much like Lamia-Beck argues here, the State argued
Hankins' original sentence was legal because it fell within the appropriate sentencing
range. The Kansas Supreme Court rejected that contention and explained:
"But the KSGA defines 'presumptive sentence' as 'the sentence provided in a grid
block for an offender classified in that grid block by the combined effect of the crime
severity ranking of the current crime of conviction and the offender's criminal history.'
(Emphasis added.) K.S.A. 21-4703(q). The judge did not select the 68-month sentence
from within the grid block for which Hankins was classified, negating its status as a
presumptive sentence, i.e., a sentence that conforms to the statutory provision." 304 Kan.
at 238.
Lamia-Beck acknowledges Hankins but argues that while the court failed to
recognize Hankins' sentence fell within the presumptive range, later rulings from the
court reflect that a sentence which falls within the presumptive range is legal and cannot
10
be changed later. He cites to Guder, Warren, and Moore, but again, those cases are not
relevant to the question of whether using the correct grid block on the wrong grid is an
illegal sentence. Moreover, this court has rejected Lamia-Beck's argument in post-
Hankins opinions. See State v. Comstock, No. 119,675, 2019 WL 1413013, at *4 (Kan.
App. 2019) (unpublished opinion) ("The problem with the State's argument is that just
because a sentence is within the proper sentencing guidelines range does not make the
sentence legal."); State v. Owens, No. 117,317, 2018 WL 5851529, at *10 (Kan. App.
2018) (unpublished opinion) (citing Hankins for the proposition that "sentence length
within proper range does not make sentence legal").
The argument rejected in Hankins mirrors Lamia-Beck's and there is no
justification for disparate treatment. Thus, applying Hankins, Lamia-Beck's original
sentence was not presumptive and did not conform to the statutory provision because the
court selected it from the wrong grid. See K.S.A. 2021 Supp. 21-6804(a) (non-drug grid);
K.S.A. 2021 Supp. 21-6805(a) (drug grid); K.S.A. 2021 Supp. 21-5403(b)(1) (defining
intentional second-degree murder as a severity level 1 person felony); K.S.A. 2021 Supp.
21-6803(q) (A presumptive sentence is in the "grid block for an offender classified in that
grid block by the combined effect of the crime severity ranking of the offender's current
crime of conviction and the offender's criminal history.") (Emphasis added.). The district
court had jurisdiction to vacate Lamia-Beck's 154-month sentence and impose the 165-
month sentence.
Affirmed.
11