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.
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
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
(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