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State v. Schulze

Court of Appeals of Kansas

July 26, 2019

State of Kansas, Appellee,
v.
Dustin Elie Schulze, Appellant.

         SYLLABUS BY THE COURT

         1. 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.

         2. A 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.

         3. The State has the burden to prove the defendant's criminal history.

         4. If 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.

         5. The 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.

          Appeal from Saline District Court; Jared B. Johnson, judge.

          Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.

          Brock R. Abbey, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.

          Before Schroeder, P.J., Green and Powell, JJ.

          Schroeder, J.

         Dustin 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 directions.

         Facts

         After 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 ...


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