BY THE COURT
K.S.A. 22-3504(1), which governs correction of illegal
sentences, applies only under very limited circumstances. An
illegal sentence under this statute is a sentence imposed by
a court without jurisdiction; a sentence that does not
conform to the statutory provision, either in the character
or the term of the punishment authorized; or a sentence that
is ambiguous with respect to the time and manner it is to be
claim that a sentence fails to conform to constitutional
requirements is not a claim that the sentence fails to
conform to statutory requirements as is necessary to come
within the narrow definition of "illegal sentence"
under K.S.A. 22-3504(1).
from Sedgwick District Court; John J. Kisner, Jr., judge.
Opinion filed June 2, 2017. Affirmed.
Michael P. Whalen and Krystle Dalke, of Law Office of Michael
P. Whalen, of Wichita, were on the brief for appellant.
K. Isherwood, assistant district attorney, Marc Bennett,
district attorney, and Derek Schmidt, attorney general, were
on the brief for appellee.
Kingsley was convicted of first-degree premeditated murder
for a 1991 killing. The jury recommended a hard 40 life
sentence, which the district court imposed. Kingsley now
claims the sentence was illegal because it was based on an
incorrect criminal history score and that his due process
rights were violated when his sentence was imposed based on
that error. The district court summarily rejected these
claims, and we affirm.
and Procedural Background
convicted Kingsley of four 1991 crimes: first-degree murder
on the alternative theories of both premeditated and felony
murder, aggravated robbery, aggravated arson, and forgery. As
part of the proceedings, the jury found three aggravating
circumstances: (1) Kingsley committed the crime for pecuniary
gain; (2) he committed the crime to avoid or prevent arrest
or prosecution; and (3) he committed the crime in an
especially heinous, atrocious, or cruel manner. It also found
the aggravating circumstances were not outweighed by any
mitigating circumstances and recommended a hard 40 life
sentencing court accepted the jury's recommendation. In
doing so, the court noted its "discretion . . . [was]
extremely limited" under the hard 40 sentencing statute.
The court first concluded there was sufficient evidence to
support the findings of aggravating circumstances. Next, it
reviewed each of the factors enumerated in K.S.A. 21-4606-the
statute that provided the general rule at that time on
ascertaining the minimum prison term to be imposed on a
person convicted of a crime. In reviewing one of the factors,
"the defendant's history of prior criminal activity,
" the court noted:
"The presentence investigation indicates that he does
have a significant history of prior criminal activity in the
State of Florida. Seems to reflect convictions for forgery,
possession of cocaine, burglary, robbery, and it is not
certain from the record I've received whether or not he
was convicted of hit and run with personal injury involved,
although there have certainly been two arrests for his and
run with personal injury and with property damage. The report
I have received discloses that in Florida, anyway, he is
categorized as a habitual felony offender."
addition to the hard 40 sentence, the court imposed
respective 15-year-to-life sentences for aggravated robbery
and aggravated arson, and a 1- to 5-year sentence for
forgery. The court ordered that the aggravated arson and
forgery sentences run consecutive to the murder and
aggravated robbery sentences, which were also to run
consecutive to one another.
direct appeal, this court vacated the aggravated arson
conviction and remanded the case for resentencing on the
lesser charge of arson. State v. Kingsley, 252 Kan.
761, 782, 851 P.2d 370 (1993). But the court affirmed the
hard 40 sentence. 252 Kan. at 796. At resentencing, the
district court imposed a 5- to 20-year sentence for arson.
The net result of these proceedings was that Kingsley was