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State v. Warren

Supreme Court of Kansas

March 9, 2018

State of Kansas, Appellee,
v.
Cedric M. Warren, Appellant.

         SYLLABUS

         1. When multiconviction cases are remanded for resentencing, the Kansas Sentencing Guidelines Act prohibits district courts from modifying sentences that have not been vacated by the appellate court. An exception exists when the district court must alter such a sentence as a matter of law to avoid an illegal sentence.

         2. Under the facts of this case, by modifying the off-grid sentence to run consecutive to those for the on-grid counts, the district court on remand made an improper de facto modification to the sentences that had not been vacated on appeal and acted inconsistent with the service of sentence sequence contemplated in K.S.A. 21-4720(b)(2).

         Appeal from Wyandotte District Court; Bill Klapper, judge. Sentence vacated, and case remanded with directions.

          Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

          Daniel G. Obermeier, assistant district attorney, argued the cause, and Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

          DECISION

          NUSS, C.J.

         Cedric Warren challenges his resentencing after the original hard 50 life sentence for his premeditated first-degree murder conviction was held unconstitutional and vacated on appeal. On remand the district court imposed a hard 25 life sentence (lifetime sentence without the possibility of parole for 25 years) for that conviction and ran it consecutive to his sentences for his two on-grid crimes. For those crimes, the court also changed his two nonvacated sentences in length and sequence.

         Warren asserts that our holding in State v. Guder, 293 Kan. 763, 267 P.3d 751 (2012)-together with the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq. (KSGA)-bars the district court from resentencing on any nonvacated counts. The State primarily responds that Guder should be overruled.

         We affirm Guder. We also disagree with the State's contention that even if the nonvacated sentences must be reinstated under Guder, the vacated sentence for the premeditated first-degree murder conviction can be changed from running concurrent with the sentences to the other crimes to running consecutive to them.

         So we again vacate and remand for resentencing. In short, Warren's original sentences for second-degree murder and attempted first-degree murder shall be reinstated and they shall run concurrent with his new hard 25 sentence for premeditated first-degree murder.

         Facts and Procedural History

         For acts that occurred on February 13, 2009, Cedric Warren was convicted of: (1) premeditated first-degree murder, an off-grid felony; (2) second-degree murder, an on-grid severity level one person felony; and (3) attempted first-degree murder, another on-grid severity level one person felony. Warren's original sentences included a hard 50 life sentence for his premeditated first-degree murder conviction and 155 months for each of his other two convictions, both of which were ordered to be served concurrently with the hard 50 sentence.

         In State v. Soto, 299 Kan. 102, 322 P.3d 334 (2014), this court later determined that Kansas' hard 50 sentencing statute was unconstitutional pursuant to the United States Supreme Court's ruling in Alleyne v. United States, 570 U.S. 99, 111-17, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Alleyne held that a person's right to a jury trial under the Sixth Amendment to the United States Constitution requires that any fact increasing a mandatory minimum sentence for a crime must be proved to a jury beyond a reasonable doubt. Given that our hard 50 procedure allowed a judge to find the existence of one ...


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