Review of the judgment of the Court of Appeals in an unpublished opinion dated July 20, 2012.
Appeal from Saline District Court; RENE S. YOUNG, judge.
BY THE COURT
1. An appellate court has jurisdiction to correct an illegal sentence even if a defendant bargained for the sentence as part of a plea agreement.
2. A sentencing judge in one Kansas county has the authority to order a sentence to be served consecutive to a sentence previously imposed by a sentencing judge in another Kansas county.
Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Christina M. Trocheck, assistant county attorney, argued the cause, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
LUCKERT, J. MICHAEL J. MALONE, Senior Judge, assigned.. BEIER, J., concurring. NUSS, C.J., dissenting. JOHNSON, J., dissenting.
Joshua Quested appeals, contending the sentencing judge imposed an illegal sentence by ordering the sentences in this Saline County case be served consecutive to a previously imposed Dickinson County sentence. He argues no Kansas statute explicitly authorizes consecutive sentences for convictions arising in separate cases prosecuted in different counties. Although the State does not dispute this assertion, it urges us to follow the 20-year-old holding in State v. Chronister, 21 Kan.App.2d 589, 903 P.2d 1345 (1995), which recognized the power of a sentencing judge to order that a sentence be served consecutive to a sentence previously imposed in a different county. We agree with this precedent, and we hold that Quested's sentences conformed to Kansas law and are not illegal. We, therefore, affirm his sentences.
Facts and Procedural Background
Pursuant to a plea agreement, Quested pleaded guilty in the Saline County District Court to nonresidential burglary and possession of stolen property in case number 07 CR 249. He also pleaded guilty to possession of marijuana and possession of stolen property in case number 07 CR 47. Under the terms of the plea agreement, Quested agreed that his sentences in Saline County would run consecutive to a yet-to-be-imposed sentence for another recent conviction in Dickinson County case number 07 CR 15. The Dickinson County crimes were factually related to the crimes in one of the Saline County cases.
After being convicted in the three cases, Quested first received his sentence in the Dickinson County District Court. The next day, Quested proceeded to sentencing for his Saline County convictions. The State, consistent with the plea agreement, requested that Quested's Saline County sentences run consecutive to the Dickinson County sentence imposed the previous day. The Saline County sentencing judge adopted this recommendation when imposing sentence. The judge suspended execution of the sentence, however, and granted Quested a dispositional departure to probation.
Nearly 1 year later, the judge revoked Quested's probation after Quested attempted to escape from Labette Correctional Conservation Camp. The judge ordered Quested to serve his underlying prison sentence. Quested then filed a motion to correct an illegal sentence, claiming that the sentencing judge had no statutory authority to make his Saline County sentences run consecutive to his Dickinson County sentence. After a hearing, the Saline County sentencing judge denied Quested's motion. Quested timely appealed to the Court of Appeals, which affirmed. We granted Quested's petition for review. See State v. Quested, 281 P.3d 180, 2012 WL 3000385, at *1-2 (Kan. App. 2012) (unpublished opinion), rev. granted October 17, 2013.
Issue: Did the sentencing judge have the authority to order Quested's Saline County sentences be served consecutive to Quested's previously imposed Dickinson County sentence?
Initially, the State contends that we lack jurisdiction to review Quested's Saline County sentences because the judge imposed sentences Quested bargained for in his plea agreement. Under K.S.A. 2014 Supp. 21-6820(c)(2), an " appellate court shall not review . . . any sentence resulting from an agreement between the state and the defendant which the sentencing court approves on the record."
While K.S.A. 2014 Supp. 21-6820(c)(2) would appear to support the State's position, another statute-- K.S.A. 22-3504(1)--provides that a " court may correct an illegal sentence at any time." This court has reconciled the two statutes by holding that an appellate court has jurisdiction to correct an illegal sentence even if it was agreed to in a plea. See State v. Cullen, 275 Kan. 56, 60-61, 60 P.3d 933 (2003); cf. State v. Morningstar, 299 Kan. 1236, Syl. ¶ 1, 329 P.3d 1093 (2014) (appellate courts have jurisdiction to determine the authority to impose a consecutive sentence even when a defendant receives a presumptive sentence, which is generally
not appealable). Quested invoked K.S.A. 22-3504(1) and its authorization to raise a legality challenge at any time by filing a motion to correct an illegal sentence and arguing his Saline County sentences do not conform to Kansas law. See State v. Sims, 294 Kan. 821, 825, 280 P.3d 780 (2012) (defining an " illegal sentence" to include one that fails to conform to law).
Hence, Quested's plea agreement does not waive his right to attack his sentence on the basis it was not authorized by statute.
1.2. Kansas' sentencing statutes and consecutive sentences
Quested's motion for illegal sentence and his appellate arguments focus on the lack of statutory authority empowering the Saline County sentencing judge to impose sentences consecutive to the Dickinson County sentence. He argues there is no statute addressing consecutive sentences under the circumstances of his case; i.e., when a sentence is imposed on different dates, in courts of different Kansas counties, for separate crimes arising from different charging documents. He notes that Kansas statutes address the issue of consecutive sentences in some circumstances, just not his. The State does not argue that any statute authorizes the sentencing judge's order. Instead, it relies on Chronister, 21 Kan.App.2d 589, 903 P.2d 1345, which served as the basis for the Court of Appeals' decision. Quested, 281 P.3d 180, 2012 WL 3000385, at *1-2.
As Quested suggests, K.S.A. 2006 Supp. 21-4720--a provision of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., which became effective in 1993--discusses consecutive sentencing but does not cover the circumstances of his case. K.S.A. 2006 Supp. 21-4720 states:
" (a) The provisions of subsections (a), (b), (c), (d), (e) and (h) of K.S.A. 21-4608 and amendments thereto regarding multiple sentences shall apply to the sentencing of offenders for crimes committed on or after July 1, 1993, pursuant to the sentencing guidelines system as provided in this act. The mandatory consecutive requirements contained in subsections (c), (d) and (e) shall not apply if such application would result in a manifest injustice.
" (b) The sentencing judge shall otherwise have discretion to impose concurrent or consecutive sentences in multiple conviction cases. The sentencing judge shall state on the record if the sentence is to be served concurrently or consecutively." (Emphasis added.) K.S.A. 2006 Supp. 21-4720(b).
At first glance, the plain language of K.S.A. 2006 Supp. 21-4720(b) appears to be a broad grant of discretion to impose consecutive sentences. But in lieu of a statutory definition for the phrase " multiple conviction cases," this court--in a context different from that presented today--has held the term in K.S.A. 2006 Supp. 21-4720(b) is solely a reference " to sentencing on multiple convictions from one charging document." State v. Koehn, 266 Kan. 10, 17, 966 P.2d 63 (1998); State v. Roderick, 259 Kan. 107, 113-14, 911 P.2d 159 (1996). Moreover, that " definition applies for all provisions of K.S.A. 21-4720(b)." State v. Bolin, 266 Kan. 18, Syl. ¶ 2, 968 P.2d 1104 (1998). Because Quested's multiple convictions did not arise from a single charging document, the judicial construction of the term " multiple conviction cases" means that K.S.A. 2006 Supp. 21-4720(b) did not provide the Saline County sentencing judge with the authority to order Quested to serve his Saline County sentences consecutive to his Dickinson County sentence.
The other subpart of this statute--K.S.A. 2006 Supp. 21-4720(a)--refers back to several subsections of K.S.A. 21-4608, which was part of the 1969 codification of the criminal law. L. 1969, ch. 180, sec. 21-4608. Under K.S.A. 21-4608(a), a sentencing judge has discretion to impose consecutive sentences when sentencing a defendant on the same day for different crimes. This provision applied to Quested's two Saline County convictions but not to his Dickinson County sentence. Subsection (b) grants discretion for a consecutive sentence when a defendant commits a crime while on various forms of release for a prior misdemeanor conviction. Additionally, subsections (c), (d), and (e) mandate a consecutive sentence when a defendant
commits a crime while either incarcerated or on some form of release for a prior felony conviction. See also K.S.A. 2006 Supp. 21-4603d(f). But Quested did not commit a subsequent crime while incarcerated or on release; he committed additional crimes prior to being arrested for the first crimes. Thus, he is correct that subsections (b), (c), (d), and (e) do not apply to his case.
In addition, the State and Quested both accept that K.S.A. 21-4608(h) does not apply to his situation. This provision states:
" When a defendant is sentenced in a state court and is also under sentence from a federal court or other state court or is subject to sentence in a federal court or other state court for an offense committed prior to the defendant's sentence in a Kansas state court, the court may direct . . . that such state sentences as are imposed may run concurrently with any federal or other state sentence imposed." (Emphasis added.) K.S.A. 21-4608(h).
The Court of Appeals panel deciding Chronister interpreted this provision to apply only if the prior sentence had been imposed in the court of another state or a federal court. Chronister, 21 Kan.App.2d at 593. Under this interpretation of K.S.A. 21-4608(h), no statutory provision would expressly apply in Quested's situation. The panel in this case did not analyze the statutes; instead it merely cited Chronister. Quested, 281 P.3d 180, 2012 WL 3000385, at *1-2.
We are not totally convinced the Chronister panel's reading of K.S.A. 21-4608(h) is correct. The first few words of K.S.A. 21-4608(h)--" [w]hen a defendant is sentenced in a state court" --apparently refers to the court imposing the new sentence, which obviously would be a court in Kansas. This suggests the subsequent references to a " state court" that imposed a prior sentence also include state courts in Kansas--whether in a different county or even the county of the current conviction. Quested's situation is arguably contemplated by the statute: He was sentenced in Saline County (in a state court) while also under sentence or subject to sentence in Dickinson County (other state court) for an offense committed prior to his sentence in Saline County (a Kansas state court). At a minimum, the statute does not expressly require that the " other state court" sentence be issued by the court of another state.
Nevertheless, the statute does not specifically authorize the imposition of a consecutive sentence. Instead, it states that " such state sentences as are imposed may run concurrently with any federal or other state sentence." K.S.A. 21-4608(h). Although there is no reference to a consecutive sentence, the provision implies that the standard order would be to run the sentences consecutively. The statute arguably clarifies that need not always be the case; the provision allows the court to use discretion in determining whether to impose consecutive or concurrent sentences. See Chronister, 21 Kan.App.2d at 593.
We hesitate to resolve the ambiguities of this provision, for there are many, in an appeal where its meaning has not been argued by the parties, especially since we agree with the remainder of the Chronister opinion. Moreover, even if we were to sort through the ambiguities of K.S.A. 21-4608(h), we would walk the same path as did the Chronister court in trying to determine the legislature's intent. See State v. Phillips, 299 Kan. 479, 495, 325 P.3d 1095 (2014) (court's first task in construing the statutory language is to ascertain legislative intent through an analysis of the language employed, giving ordinary words their ordinary meaning).
We, therefore, will analyze Quested's case based on his premise--which is true even if K.S.A. 21-4608(h) applies--that no Kansas statute expressly authorizes a sentencing judge from ordering a sentence to run consecutive to a sentence previously imposed in a different county. But we point out that it is equally true that no Kansas statute expressly prohibits a sentencing judge from ordering a sentence to run consecutive to a sentence previously imposed in a different county. Quite simply, no statute expressly addresses this situation.
This legislative silence creates an ambiguity. When faced with an ambiguity, courts must attempt to ascertain legislative
intent and in doing so may look to canons of construction, legislative history, the circumstances attending the statute's passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. See Traster v. Traster, 301 Kan. 88, 98, 339 P.3d 778 (2014); Phillips, 299 Kan. at 495. The Chronister panel employed some of these considerations in reaching its holding.
In Chronister, as here, a defendant received sentences on different dates for crimes occurring in different counties. The second sentencing judge ordered Chronister to serve that sentence after he completed the earlier sentence. Chronister, 21 Kan.App.2d at 590-91. On appeal, Chronister argued the sentencing judge lacked authority to order the sentences be served consecutively, noting that no statute explicitly authorized consecutive sentences under circumstances like his.
The Chronister Court of Appeals panel concluded that no statute covered the situation and discounted the applicability of K.S.A. 21-4608(h) by limiting it to apply when a defendant is under sentence or subject to sentence in " other jurisdictions." 21 Kan.App.2d at 593. Nevertheless, the Chronister panel held the sentencing judge had discretion to order Chronister to serve his sentence consecutively to the sentence previously imposed in a different county. The panel did so by noting that the statutes allowed for consecutive sentencing if the earlier sentence had been imposed in either " another state" or in federal court and properly determining that it would be " illogical" to conclude the legislature intended a sentencing benefit to defendants who committed more than one offense in Kansas. 21 Kan.App.2d at 593.
In addition, the Chronister court noted that " [p]rior to 1982, the imposition of concurrent or consecutive sentences in all criminal cases was placed within the sound discretion of the trial court" even though no statutory provisions mandated consecutive sentences. 21 Kan.App.2d at 593 (citing State v. Reed, 237 Kan. 685, 703 P.2d 756 ). Then, in 1982, the legislature limited judicial discretion by mandating consecutive sentences in certain cases " in response to public concern." 21 Kan.App.2d at 593. " Given the impetus behind the 1982 amendment, it is doubtful that the legislature also intended to strip courts of the power to impose consecutive sentences in cases such as the present one" where crimes were committed in two different Kansas counties. 21 Kan.App.2d at 593-94.
Although this court has not previously addressed the issue in Chronister since the KSGA became effective in 1993, the State urges us to recognize that the Chronister holding has guided sentencing in Kansas for 20 years, including in this case, and to adopt its reasoning. While the Chronister panel read K.S.A. 21-4608(h) differently than we do, the panel's reasoning supports our interpretation of the legislature's intent. In addition, we agree that the doctrine of stare decisis justifies our adoption of Chronister.
1.4. Following precedent
Indeed, following precedent--especially such long-standing precedent--promotes system-wide stability and continuity. Crist v. Hunan Palace, Inc., 277 Kan. 706, 715, 89 P.3d 573 (2004). We recognize that we are not bound by the Court of Appeals' decision, but it has guided sentencing judges for 20 years. And no other decision has clearly instructed sentencing judges to do anything but follow Chronister --the only appellate decision specifically addressing the circumstances of this case. See Crist, 277 Kan. at 715 (" 'It is recognized under the doctrine of stare decisis that, once a point of law has been established by a court, that point of law will generally be followed by the same court and all courts of lower rank in subsequent cases where the same legal issue is raised.'" ).
Nevertheless, Quested argues we should not adopt Chronister because it was wrongly decided. Certainly, even if we were bound by a Court of Appeals decision, which we are not, " [t]he doctrine of stare decisis [would] not compel us to perpetuate an incorrect analysis of a statute enacted by the legislature."
Hall v. Dillon Companies, Inc., 286 Kan. 777, 787, 189 P.3d 508 (2008). But, as Quested himself takes pains to point out, this is not a situation where the Chronister court ignored or modified the plain language in a statute. Rather, the Chronister court seemingly held that in lieu of a direct statement by the legislature abrogating a judge's common-law authority to impose a consecutive sentence, the judge retained the authority to decide whether a sentence should be concurrent or consecutive, especially since recognizing that authority furthered the legislative policy. Chronister, 21 Kan.App.2d at 593-94. Although the discussion of this point in Chronister is implicit and brief, other cases provide context and support for the proposition that a judge's common-law authority to impose consecutive sentences is not abrogated unless the legislature enacts a statute that does so or otherwise expresses a contrary intent.
1.5. United States Supreme Court decisions
Decisions of the United States Supreme Court illustrate the point. The Court documented the history of a judge's common-law power to impose consecutive sentences in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009). The Ice Court cited two general authorities supporting the longstanding recognition of a judge's power to exercise discretion and to order a sentence to run either concurrent with or consecutive to another sentence. 555 U.S. at 168-69 (quoting 1 J. Bishop, Criminal Law § 636, pp. 649-650 [2d ed. 1858] [" '(W)hen there are two or more convictions, on which sentence remains to be pronounced; the judgment may direct, that each succeeding period of imprisonment shall commence on the termination of the period next preceding.'" ]; A. Campbell, Law of Sentencing § 9:22, p. 425 [3d ed. 2004] [" 'Firmly rooted in common law is the principle that the selection of either concurrent or consecutive sentences rests within the discretion of sentencing judges.'" ]).
The Ice Court also cited several English cases to show that a judge's authority to impose a consecutive sentence had been recognized before the " founding of our Nation" and to establish that the " historical record further indicates that a judge's imposition of consecutive, rather than concurrent, sentences was the prevailing practice." 555 U.S. at 169 (quoting Lee v. Walker,  1 Q.B. 1191, 1201  [" '(T)he High Court has always had inherent jurisdiction to impose consecutive sentences of imprisonment in any appropriate case where the court had power to imprison.'" ]; Queen v. Cutbush, 2 L.R.Q.B. 379, 382, 10 Cox Crim. Cas. 489, 492  [" 'Right and justice require (that) when a man has been guilty of separate offences, . . . that he should not escape from the punishment due to the additional offence, merely because he is already sentenced to be imprisoned for another offence" ; also noting that it had been the practice to impose consecutive sentences " 'so far as living judicial memory goes back'" ]; and citing King v. Wilkes, 19 How. St. Tr. 1075, 1132-1136 [K.B. 1769]).
The Ice Court did note, however, that a legislature is free to " rein in the discretion judges possessed at common law to impose consecutive sentences at will." 555 U.S. at 171. The effect of such an attempt to rein discretion was tested 3 years later in Setser v. United States, 566 U.S., 132 S.Ct. 1463, 182 L.Ed.2d 455 (2012).
In Setser, the United States Supreme Court considered whether a statute passed by Congress limited the authority to such an extent that it was totally abrogated under the circumstances underlying the case. The federal sentencing statutes in question--much like Kansas'--addressed some, but not all, multiple sentencing situations. In light of those federal statutes, the question in Setser was whether a federal judge had the authority to order a defendant to serve his federal sentence consecutive to a yet-to-be-imposed state sentence. Federal statutes regarding consecutive or concurrent sentences addressed only multiple sentences imposed at the same time or a sentence imposed on a defendant who was already subject to an undischarged term of imprisonment. Neither circumstance applied, but the Court held the federal sentencing judge had the discretion to impose a consecutive sentence.
The Setser Court reasoned that the federal sentencing statutes had to be construed in light of " 'the common-law background against which the statutes . . . were enacted.'" 132 S.Ct. at 1468. Under that approach, the Court recognized: " Judges have long been understood to have discretion to select whether the sentences they impose will run concurrently or consecutively with respect to other sentences that they impose, or that have been imposed in other proceedings." 132 S.Ct. at 1468. The Court observed there must be a mechanism to determine whether two or more sentences are concurrent or consecutive, and Congress had done nothing to foreclose the exercise of judges' commonly recognized authority to make the determination. 132 S.Ct. at 1468.
The Court also rejected the defendant's argument that Congress' grant of authority to impose consecutive sentences in " scenario A and scenario B [means] there is no such discretion in scenario C." 132 S.Ct. at 1469. The points made by the Court in rejecting this argument apply equally to Kansas' statutory scheme:
" The Latin maxim on which Setser relies-- expressio unius est exclusio alterius --might have application here if the provision in question were a conferral of authority on district courts. Giving sentencing authority in only specified circumstances could be said to imply that it is withheld in other circumstances. Section 3584, however, is framed not as a conferral of authority but as a limitation of authority that already exists (and a specification of what will be assumed when the exercise of that authority is ambiguous). It reads not 'District courts shall have authority to impose multiple terms of imprisonment on a defendant at the same time, etc.' but rather 'If multiple terms of imprisonment are imposed on a defendant at the same time, [etc.]'--quite clearly assuming that such authority already exists. The mere acknowledgment of the existence of certain pre-existing authority (and regulation of that authority) in no way implies a repeal of other pre-existing authority. And that is especially true when there is an obvious reason for selecting the instances of pre-existing authority that are addressed--to wit, that they are the examples of sentencing discretion most frequently encountered." 132 S.Ct. at 1469.
The United States Supreme Court is not alone in reaching the conclusion that the common-law authority to impose a consecutive sentence continues in situations where there is not a legislative directive otherwise. Several state courts have reached the same conclusion. E.g., State v. Leak, 297 Conn. 524, 537-39, 998 A.2d 1182 (2010) (courts have " inherent common-law power to stay the execution of their own judgments and thereby order that confinements run consecutively" ; power continues in lieu of clear legislative mandate to alter the common law even in the absence of an express statutory conferral of authority); Schamber v. State, 152 Ga.App. 196, 198, 262 S.E.2d 533 (1979) (finding sentencing statute not applicable and not " a limitation upon the discretion of the trial court, derived from the common law, to set sentences . . . to commence at the termination of all sentences previously imposed" ); State v. Calley, 140 Idaho 663, 665, 99 P.3d 616 (2004) (holding that while no sentencing statute permitted a court in one county to impose a sentence consecutive to probation from another county, " [u]nder the common law, the courts in Idaho have discretionary power to impose cumulative sentences" ); Duquette v. Warden, New Hampshire State Prison, 154 N.H. 737, 743-44, 919 A.2d 767 (2007) (statutory silence regarding authority to impose consecutive sentence did not limit common-law authority; inherent discretionary authority was only limited by certain situations where consecutive sentences were mandated); State v. Trice, 159 Or.App. 1, 4-5, 976 P.2d 569 (1999) (" nothing in the language of the statute . . . limits the court in the exercise of its discretion from imposing partially consecutive sentences and concurrent sentences" ).
1.6. Kansas decisions predating Chronister
These cases--both of the United States Supreme Court and of other state courts--are not binding on us. They are merely persuasive support for the holding in Chronister.
Although not addressing these cases, Quested argues that any reliance on common-law authority, as articulated in State v. Chronister, 21 Kan.App.2d 589, 903 P.2d 1345 (1995), is contrary to the reasoning in another Court of Appeals decision, State v. Crawford, 39 Kan.App.2d 897, Syl. ¶ ¶ 2-3, 185 P.3d 315 (2008). He argues that under Crawford, a judge lacks the authority to impose consecutive sentences unless specifically authorized by statute.
To better understand the Chronister panel's decision and the cases relied upon by the Crawford panel, some historical context is helpful. Cases predating Chronister generally support the Chronister panel's reasoning and, more specifically, the conclusion that a sentencing judge retains the common-law power to impose consecutive sentences in any circumstance where the Kansas Legislature has not restricted the authority or stated a contrary legislative policy. In other words, as stated in one such decision, the common-law rule " should be applied, in the absence of a statute governing the subject, thus recognizing that the statute, if enacted, is controlling." (Emphasis added.) Beck v. Fetters, 137 Kan. 750, 752, 22 P.2d 479 (1933); see K.S.A. 21-5103(a) (recognizing the criminal code did not entirely displace common law; " where a ...