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STATE v. MARKS

September 20, 1990.

STATE OF KANSAS, Appellee,
v.
ARTHUR MARKS, Appellant.



Arthur Marks appeals the sentence imposed by the district court after he pleaded guilty to one count of possession of cocaine with intent to sell (K.S.A. 1989 Supp. 65-4127a[a]). Marks contends that he was denied due process because the State breached its plea agreement by opposing his motion to reconsider the motion for modification of sentence and that the district court erred in refusing to follow the State Reception and Diagnostic Center (SRDC) recommendation to modify his sentence without making the required statutory findings. We affirm in part, reverse in part, and remand for further proceedings.

Marks was charged with one count of selling cocaine and one count of possessing cocaine with intent to sell. The State dismissed the former count, and Marks pleaded guilty to the latter. He was sentenced to five to twenty years in prison. Marks filed a motion for modification of sentence, which the district court heard and denied. Marks then filed a motion to reconsider the motion to modify, which was also heard and denied.

1. Plea agreement.

  Ambiguous plea agreements must be read strictly against the State. State v. Wills, 244 Kan. 62, 69, 765 P.2d 1114 (1988). The Wills court found the State's agreement, which required a favorable recommendation at sentencing but which did not address post-sentencing hearings, applied to a hearing on the defendant's motion to modify the sentence. 244 Kan. at 69-70. Because the State in Wills had breached the agreement at the hearing on the motion to modify the sentence, the Supreme Court remanded the case to have the motion to modify reheard by a different district court judge. 244 Kan. at 70.

  The plea agreement in the present case provided that, in exchange for Marks' plea of guilty to the present charge, the prosecution would drop the other charge and recommend a minimum sentence but oppose probation. Possession of cocaine with intent to sell is a class C felony. K.S.A. 1989 Supp. 65-4127a. The minimum sentence for a class C felony is three to ten years in prison. K.S.A. 21-4501(c). At the sentencing hearing, the State

[14 Kan. App. 2d 596]

      recommended a sentence of three to ten years in prison, thus honoring the plea agreement. The district court nevertheless sentenced Marks to five to twenty years in prison.

  At the hearing on Marks' motion to modify sentence, Marks' attorney incorrectly informed the district court that it had imposed a minimum sentence and that all Marks was seeking was probation. The court orally denied the motion to modify sentence and stated that it had imposed a minimum sentence.

  Before the district court filed a journal entry on its denial of the motion to modify, Marks filed a motion to reconsider the motion to modify on the ground that his attorney had misinformed the court about his sentence. At the hearing on the motion to reconsider, Marks' attorney pointed out that he had misinformed the court at the prior hearing, that Marks had received a sentence greater than the minimum allowed, and that Marks was requesting the minimum sentence. The State, contrary to the plea agreement, opposed the motion, and the court denied it.

  Wills controls this issue. Just as in Wills, the plea agreement in the present case is ambiguous because it did not address the question of whether the agreement applied to Marks' motions to modify and to reconsider the motion to modify. 244 Kan. at 69-70. As in Wills, therefore, the State bore the risk of ambiguity and was bound by the agreement regarding both the motion to modify and the motion to reconsider. The State breached the agreement and the case must be remanded to a different district judge to rehear Marks' motion to modify sentence.

  The State argues the district court did not have jurisdiction to consider the motion to reconsider because it constituted a motion to alter and amend under K.S.A. 60-259(f), and Marks failed to file the motion within the ten-day limitation for such motions. Assuming for purposes of the State's argument that Marks' motion was one to alter or amend and that K.S.A. 60-259(f) is applicable, the statute provides that motions must be filed within ten days after "entry of the judgment." K.S.A. 60-258 defines entry of judgment as the filing with the clerk of the court a journal entry or judgment form signed by the trial judge.

  Our Supreme Court has held that K.S.A. 60-258 does not apply to the rendering of judgments and the imposition of sentence in criminal cases. State v. Moses, 227 Kan. 400, 403, 607 P.2d 477

[14 Kan. App. 2d 597]

      (1980). The court held that those instances are governed by K.S.A. 22-3424 and -3426, and that appeal time must be computed from the oral pronouncement of sentence.

  Accepting the State's argument that Marks' motion was one to alter or amend under K.S.A. 60-259(f), and noting that there is no specific statute governing such motions in chapter 22 of the Kansas Statutes Annotated, we conclude that the present case is distinguishable from Moses and that K.S.A. 60-258 is applicable. As noted in State v. Myers, 10 Kan. App. 2d 266, 271, 697 P.2d 879 (1985):
"The rationale for running the 120-day appeal time from oral pronouncement of the sentence is unique to sentencing. See State v. Moses, 227 Kan. 400, 402, 607 P.2d 477 (1980), and cases cited therein. K.S.A. 1984 Supp. 22-3405(1) requires that the defendant be present when sentence is imposed. The defendant's presence at sentencing insures defendant's immediate notice of the sentence imposed and the opportunity to timely pursue an appeal. However, the presence of a defendant at the pronouncement of the decision on a post-sentencing motion is discretionary with the ...

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