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State v. McCarley

July 27, 2007


Appeal from Sedgwick District Court; DAVID W. KENNEDY, judge.


1. K.S.A. 21-4721(e)(3) provides that in any appeal, the appellate court may review a claim that the sentencing court erred in ranking the crime severity level of the current crime or in determining the appropriate classification of a prior conviction or juvenile adjudication for criminal history purposes.

2. By its clear language, K.S.A. 21-4721(e) is limited to appeals and has no application to the State's attempt to secure review of a collateral attack on a sentence under K.S.A. 22-3504.

3. Key to a determination of appellate jurisdiction on a question reserved by the State is whether the questions raised are of statewide interest important to the correct and uniform administration of criminal law.

4. A motion to correct an illegal sentence pursuant to K.S.A. 22-3504(1) applies in very limited circumstances.

5. An illegal sentence is a sentence imposed by a court without jurisdiction, a sentence that does not conform to the statutory provision, either in character or the term of the punishment authorized, or a sentence that is ambiguous with regard to the time and manner in which it is to be served.

6. The court possesses jurisdiction over the offense charged in a complaint and all lesser included offenses.

7. Our Supreme Court measures the legality of sentence by general conformance to the statute defining the crime rather than a precise match of the sentence imposed to the precise severity level of the crime for which the defendant was or could have been convicted. Where the sentence generally conforms to both the formal record of trial and is within the severity levels prescribed by the statute, the sentence is not illegal.

8. The State cannot challenge the severity level of petitioner's crime after stating, in response to a direct inquiry by the court, that there was agreement as to severity level at time of sentencing.

9. Where a party has by his or her own actions invited the court into error, that party cannot complain or take advantage of such error on appeal. This doctrine applies generally to matters of law, including evidentiary rulings, jury instruction error, acceptance of jury verdict, error in the form of judgment, and other legal issues, with the exception of jurisdiction.

10. The State's agreement to the severity level at time of sentencing bars any appellate review of the resulting sentence because K.S.A. 21-4721(c)(2) provides that we shall not review any sentence resulting from an agreement between the State and the defendant that the sentencing court approves on the record.

11. The legislature has not limited our consideration of lesser included offenses to the strict elements test. K.S.A. 2006 Supp. 21-3107(2)(a) specifically provides that a lesser included offense is a lesser degree of the same crime.

12. The distinction between aggravated battery as defined in K.S.A. 21-3414(a)(1)(A) and as defined in K.S.A. 21-3414(a)(2)(A) is one of degree of intentionality. Both crimes, however, are proscribed within the same statute, which clearly establishes degrees of the same general crime, that of aggravated battery. Aggravated reckless battery under K.S.A. 21-3414(a)(2)(A) is a lesser included offense of aggravated intentional battery under K.S.A. 21-3414(a)(1)(A).

13. Under the facts of this case, the jury instructions clearly informed the jury that in order to convict the defendant of reckless aggravated battery, he must have caused great bodily harm or disfigurement to the victim. The failure to give a proximate cause jury instruction was not clearly erroneous.

The opinion of the court was delivered by: Greene, J.


Before RULON, C.J., GREENE, J., and KNUDSON, S.J.

The State of Kansas appeals the district court's denial of its motion to correct an illegal sentence, arguing that the court had a duty to correct the sentence after the defendant, Steven M. McCarley, was sentenced based upon a presentence investigation report (PSI) that misidentified the correct severity level for the precise crime of conviction. We conclude that the State's stipulation to the PSI at time of sentencing and the State's failure to timely appeal the sentence require that we affirm the district court. We also conclude that McCarley's cross-appeal is meritless.

Factual and Procedural Background

After a fender-bender in a grocery store parking lot, McCarley and the driver of the other vehicle engaged in a heated argument regarding degree of damage. When the other driver walked to a pay phone to call the police, McCarley attempted to leave the scene. The other driver's passenger inquired into McCarley's attempt to leave, and McCarley invited him to sit down in McCarley's vehicle and discuss the matter. According to the passenger, however, he never shut the door of the vehicle when McCarley accelerated, made a turn, and pushed the passenger from the vehicle. Observing McCarley's escape, the other driver returned from the pay phone and attempted to abate the departure; McCarley bumped her in the chest with his vehicle. McCarley was charged with two counts of aggravated battery, one against the driver, and one against the passenger.

The jury was instructed on lesser included offenses and, specifically on count two, was instructed on the elements of aggravated reckless battery as requiring the material finding that "McCarley recklessly caused great bodily harm or disfigurement to Nicola 'Nick' Cosentino" and that this occurred "on or about the 3rd day of April, 2005, in Sedgwick County, Kansas." The jury acquitted McCarley of the charges involving the driver, but convicted him of the lesser offense of reckless aggravated battery against the passenger. The formal "Record of Trial or Plea" identified the guilty verdict on count two, "Aggravated Reckless Battery" without further identification of statutory proscription or severity level.

At time of sentencing, the PSI listed the crime of conviction as aggravated reckless battery, severity level 8, pursuant to K.S.A. 21-3414(a)(2)(B). When the district court inquired of counsel whether there was any question as to severity level or criminal history reported by the PSI, both counsel stipulated that it was correct. This exchange went as follows:

"(The Court): The Presentence Investigation shows this to be a severity level 8 offense, shows Mr. McCarley to have a criminal history score of A. Any dispute by the State as to severity level or criminal history--criminal history--with severity level?

"[Prosecutor]: No, your Honor."

McCarley was then sentenced for a severity level 8 person felony to 23 months' incarceration.

After time for appeal had expired, and approximately 34 days after sentencing, the State filed its motion to correct illegal sentence, claiming that McCarley was illegally sentenced to a severity level 8 crime when he was convicted of a severity level 5 crime. Although these lesser included offenses are similar, K.S.A. 21-3414(a)(2)(A) (severity level 5) proscribes "recklessly causing great bodily harm to another person . . ." whereas K.S.A. 21-3414(a)(2)(B) (severity level 8) proscribes "recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm . . . can be inflicted." After a hearing, the district judge denied the motion, stating:

"I think the case law is very clear. It's not -- there is a bright line, and that bright line is, when I hear that door in the back of the courtroom go click as it closes behind Mr. McCarley, I can't correct an illegal sentence if that illegal sentence is in Mr. McCarley's favor. I can correct it if it is not in his favor. If there's an illegal sentence that favors a harsher, longer sentence, that is subject to correction. However, if it's in favor of the defendant for a lesser, less harsh sentence, it cannot be corrected. And I have to overrule the motion."

The State appeals, and McCarley cross-appeals. Was the State Entitled to Challenge McCarley's Sentence On Appeal?

During oral argument, this court expressed a concern for its jurisdiction, inquiring whether the State had the right to appeal the district court's denial of the motion to correct illegal sentence. We have a duty to question jurisdiction on our own initiative. State v. Wendler, 280 Kan. 753, 755, 126 P.3d 1124 (2006). Following argument the State filed a statement of additional authorities pursuant to Supreme Court Rule 6.09(b) (2006 Kan. Ct. R. Annot. 44). We have duly considered these authorities in addressing our jurisdiction.

The right to appeal is strictly a statutory right. Neither the United States Constitution nor the Kansas Constitution establishes the right to appeal. State v. Flynn, 274 Kan. 473, 477, 55 P.3d 324 (2002). "The State's right to appeal in a criminal case is strictly statutory, and the appellate court has jurisdiction to entertain a State's appeal only if it is taken within time limitations and inthe manner prescribed by the applicable statutes. State v. Unruh, 263 Kan. 185, 189, 946 P.2d 1369 (1997)." State v. Snodgrass, 267 Kan. 185, 196, 979 P.2d 664 (1999).

K.S.A. 2006 Supp. 22-3602(b) lists the following grounds for which the prosecution can appeal:

"Appeals to the court of appeals may be taken by the prosecution from cases before a district judge as a matter of right in ...

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