BY THE COURT
Whether a sentence is illegal within the meaning of K.S.A.
2018 Supp. 22-3504 is a question of law over which the
appellate court has unlimited review.
sentence is illegal under K.S.A. 2018 Supp. 22-3504 when: (1)
it is imposed by a court without jurisdiction; (2) it does
not conform to the applicable statutory provisions, either in
character or punishment; or (3) it is ambiguous with respect
to the time and manner in which it is to be served.
State has the burden to prove the defendant's criminal
the State fails to find a conviction or convictions in a
defendant's criminal history, the State is prohibited
from later amending, and ultimately increasing, the severity
level of a defendant's criminal history for the crime or
crimes at issue.
State cannot later challenge the factual basis for a
defendant's criminal history score when it failed to
object to it before the district court.
from Saline District Court; Jared B. Johnson, judge.
Tate Mann, of Kansas Appellate Defender Office, for
R. Abbey, assistant county attorney, Ellen Mitchell, county
attorney, and Derek Schmidt, attorney general, for appellee.
Schroeder, P.J., Green and Powell, JJ.
E. Schulze appeals the district court's decision to
approve the State's motion to correct an illegal
sentence, which the State filed after discovering his
original presentence investigation (PSI) report failed to
contain all of his prior convictions. The district court
originally sentenced Schulze based on a criminal history
score of C. The amended PSI report had five more convictions,
two of which were person misdemeanors. The new PSI report
changed Schulze's criminal history score from a C to a B.
The district court found it needed to resentence Schulze
based on his new criminal history score. Schulze now argues
his sentence was not illegal and the district court had no
authority under these facts to resentence him. We agree with
Schulze, finding his original sentence controls since it was
based on the criminal history the State proved at the time of
his original sentencing. Reversed and remanded with
pleading no contest to felony theft, Schulze appeared for
sentencing. His PSI report showed he had a criminal history
score of C, listing 18 prior convictions. Schulze agreed with
the PSI report and its finding he had a criminal history
score of C, resulting in a sentence of presumptive probation.
K.S.A. 2016 Supp. 21-6804(a). The State recommended Schulze
be sentenced to prison, based on his criminal history score
and the fact this crime occurred while he was on felony bond.
The district court disagreed with the State's
recommendation and sentenced Schulze to 12 ...