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
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).
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.
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.
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
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
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.
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.
and Procedural History
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.
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 ...