of sentencing statutes is a question of law over which an
appellate court exercises unlimited review.
Whether a sentence is illegal within the meaning of K.S.A.
22-3504 is also a question of law over which an appellate
court has unlimited review.
Under K.S.A. 22-3504(1), courts may correct an illegal
sentence at any time.
one or more of the sentences in a multiconviction case is
illegal under K.S.A. 22-3504, district courts may only
correct the illegal sentence or sentences.
correcting an illegal sentence, the district court's
authority in setting the length of the new prison term
includes determining whether the corrected sentence will run
consecutive to, or concurrent with, the other
of the judgment of the Court of Appeals in an unpublished
decision filed February 3, 2017. Appeal from Shawnee District
Court; Evelyn Z. Wilson, judge. Decision filed January 25,
2019. Judgment of the Court of Appeals affirming in part,
vacating in part, and remanding with directions is affirmed
in part and reversed in part. Judgment of the district court
is affirmed in part, vacated in part, and remanded with
A. Desch, of Law Office of Joseph A. Desch, of Topeka, argued
the cause, and was on the brief for appellant.
E. Litfin, assistant solicitor general, argued the cause, and
Rachel L. Pickering, assistant solicitor general, Chadwick J.
Taylor, former district attorney, Michael F. Kagay, district
attorney, and Derek Schmidt, attorney general, were on the
briefs for appellee.
Lee Jamerson challenges his resentencing after the district
court granted his motion to correct an illegal sentence but
then also modified the duration and concurrent nature of one
of his legal, nonbase sentences. The primary issue presented
asks: to what extent can a district court modify multiple
sentences when only some of them are held to be illegal
following a motion to correct an illegal sentence?
conclude the district court may only correct the illegal
sentences. We affirm in part and vacate in part the decision
of that court, affirm in part and reverse in part the
decision of the Court of Appeals, and remand with directions.
and Procedural History
2001, Jamerson pled no contest to (1) second-degree murder, a
severity level 1 person felony; (2) aggravated robbery, a
severity level 3 person felony; and (3) conspiracy to commit
aggravated robbery, a severity level 5 person felony.
Jamerson and the State agreed to recommend a 288-month
controlling prison sentence, and the district court agreed to
follow the recommendation. In its implementation, the court
determined Jamerson had a criminal history score of D and
sentenced him to a standard grid box term of 253 months for
second-degree murder; a downward departure to 35 months for
aggravated robbery; and a downward departure to 35 months for
conspiracy. The court ordered the aggravated robbery sentence
to run consecutive to the second-degree murder sentence and
the conspiracy sentence to run concurrent with both. This
resulted in a total controlling sentence of 288 months'
years later in 2015, Jamerson filed a pro se motion to
correct an illegal sentence, and his appointed counsel later
filed a supplemental motion. Jamerson argued his criminal
history score was incorrect at sentencing. After holding an
evidentiary hearing, the court determined Jamerson's
criminal history should have been H, not the more serious D.
To correct the error, Jamerson and the State both recommended
that the second-degree murder sentence be reduced from 253
months to 176 months. This would in turn reduce the
controlling sentence to 211 months' imprisonment.
resentencing, the court noticed another error in
Jamerson's sentences. Specifically, the 2001 sentencing
court had erroneously also applied Jamerson's criminal
history to the nonbase sentences of aggravated robbery and
conspiracy to commit aggravated robbery. Under the sentencing
guidelines, the court does not apply the defendant's
criminal history score to nonbase sentences but instead uses
the gridbox applicable for no criminal history, or I. K.S.A.
2001 Supp. 21-4720(b)(5) ("Nonbase sentences will not
have criminal history scores applied, as calculated in the
criminal history I column of the grid, but base sentences
will have the full criminal history score assigned.").
The error did not impact Jamerson's aggravated robbery
conviction because the court's downward departure to 35
months coincidentally was a gridbox sentence for a severity
level 3 person felony with no criminal history. But the
35-month sentence for conspiracy to commit aggravated robbery
was an illegal upward departure when using the correct
criminal history score. That gridbox sentence should have
been 31 months (mitigated), 32 months (standard), or 34
apparent effort to keep the new sentence as close as possible
to the one in 2001, the 2015 court resentenced Jamerson to
the aggravated gridbox sentence of 186 months for
second-degree murder; the standard gridbox sentence of 59
months for aggravated robbery; and the aggravated grid box
sentence of 34 months for conspiracy. The court ordered all
three sentences to run consecutive for a total controlling
sentence of 279 months' imprisonment.
appealed, arguing the court only had authority to correct the
illegal second-degree murder sentence and lacked jurisdiction
to modify his unchallenged aggravated robbery and conspiracy
Court of Appeals panel concluded the 2015 resentencing court
had jurisdiction to modify the conspiracy sentence from the
erroneous downward departure of 35 months to the appropriate
aggravated term of 34 months because the sentence itself was
illegal, independent of the illegal base sentence for
second-degree murder. State v. Jamerson, No. 115,
629, 2017 WL 462716 (Kan. App. 2017) (unpublished opinion).
But it concluded the court did not have jurisdiction to
deviate from the original sentence by making the conspiracy
sentence run consecutive to the second-degree murder and
aggravated robbery sentences or to resentence Jamerson to 59
months for aggravated robbery. The panel held Jamerson should
have a controlling sentence of 221 months- 186 for the ...