State v. Guder

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 101,632

STATE OF KANSAS,
Appellee,

v.

ROLLAND D. GUDER,
Appellant.


SYLLABUS BY THE COURT

1.
The sentencing of a defendant is strictly controlled by statute; accordingly, the
authority to modify a sentence is also strictly statutory.

2.
Unless it has explicit statutory authority to do so, a district court may not modify a
sentence once the court has pronounced the sentence from the bench.

3.
The Kansas Sentencing Guidelines Act does not grant district courts the authority
to modify sentences following remand unless the primary conviction was reversed on
appeal.

Review of the judgment of the Court of Appeals in an unpublished opinion filed February 5,
2010. Appeal from Bourbon District Court; RICHARD M. SMITH, judge. Opinion filed January 27, 2012.
Judgment of the Court of Appeals affirming the district court is reversed. The modified sentence is
vacated in part and the case is remanded to the district court with directions.

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Heather R. Cessna, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.

Terri L. Johnson, county attorney, argued the cause, and Steve Six, attorney general, was with her
on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: We have repeatedly held that the Kansas Sentencing Guidelines Act
(KSGA), K.S.A. 21-4701 et seq., governs the jurisdiction of courts to impose sentences.
This appeal asks us to address the authority of district courts to modify sentences
following remand from the appellate courts. We reiterate our earlier decisions holding
that, in enacting the KSGA, the legislature intended to restrict the authority of district
courts to modify sentences once the sentences have been pronounced from the bench.

Rolland D. Guder, the appellant, pleaded guilty to one count of unlawfully
manufacturing a controlled substance, one count of cultivating marijuana, four counts of
criminally possessing a weapon, and one count of possessing drug paraphernalia.

On May 9, 2001, the district court sentenced Guder to a standard drug grid box
term of 162 months' imprisonment for the manufacturing conviction; 15 months for the
marijuana cultivation conviction, to run consecutive to the manufacturing sentence; 8
months for each of the weapons convictions, to run concurrent with the marijuana
sentence; and 11 months for the paraphernalia conviction, to run concurrent with the
weapons sentences. The controlling term was 177 months' imprisonment.

On May 17, 2001, Guder filed a timely notice of appeal through counsel. The
appeal was not docketed, however, for nearly 7 years. On March 18, 2008, Guder filed a
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motion with the Court of Appeals to docket his appeal out of time. On April 3, 2008, the
Court of Appeals granted the motion, and the appeal was finally docketed.

Guder then filed a motion for summary disposition, which the Court of Appeals
granted by an order dated June 2, 2008. The Court of Appeals acknowledged that Guder's
appeal had not been timely perfected and that he was entitled to relief under State v.
Phinney, 280 Kan. 394, 407, 122 P.3d 356 (2005); State v. Barnes, 278 Kan. 121, 127-29,
92 P.3d 578 (2004); and State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), and
reversed the original sentence for manufacturing a controlled substance. The order
concluded: "The Appellant's sentence is vacated, and this case is remanded with
directions to resentence Appellant at the appropriate crime severity level."

On August 19, 2008, the district court resentenced Guder. The court sentenced
him in accordance with McAdam to a severity level 3D aggravated sentence of 32
months' imprisonment for the manufacturing conviction. The court also imposed a
sentence of 15 months for the marijuana conviction, to be served consecutive to the
manufacturing sentence; 8 months for each of the weapons convictions, to be served
concurrent with the paraphernalia sentence; and 11 months for the paraphernalia
conviction, to be served consecutive to the manufacturing sentence, for a controlling term
of 58 months' imprisonment. The district court thus modified the manufacturing sentence
as it was directed to do by the Court of Appeals, but it also modified the paraphernalia
sentence from concurrent to consecutive.

Guder filed a timely notice of appeal from the new sentence. The Court of Appeals
affirmed (see State v. Guder, No. 101,632, unpublished opinion filed February 5, 2010),
and this court granted Guder's petition for review. We note that Guder may have already
served his sentence imposed with the modified severity levels, but we elect to address the
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issue on its merits because the situation is capable of repetition and raises concerns of
public importance. See State v. McKnight, 292 Kan. 776, 778, 257 P.3d 339 (2011).

The interpretation of sentencing statutes is a question of law over which this court
exercises unlimited review. McKnight, 292 Kan. at 780. Whether a district court has
complied with the mandate of an appellate court is also a question of law. Kansas Baptist
Convention v. Mesa Operating Ltd. Partnership, 258 Kan. 226, 231, 898 P.2d 1131
(1995).

At the core of this appeal is whether a district court may modify a previously
imposed sentence on one conviction following a remand from an appellate court for
resentencing based on a different conviction. Historically, Kansas district courts had
considerable discretion to modify sentences following pronouncement from the bench.
See State v. Anthony, 274 Kan. 998, 999, 58 P.3d 742 (2002).

Prior to 1992, when the KSGA was enacted, district courts had the authority to
modify sentences on remand. In State v. Woodbury, 133 Kan. 1, 298 Pac. 794 (1931), this
court found that a sentence pronounced following conviction is a singular entity that
cannot be subdivided into correct and erroneous counts, and the sentencing court
therefore had the latitude on remand to modify its original sentence on all counts,
including those for which no error had been found. 133 Kan. at 2.

Subsequent cases have cited Woodbury as controlling authority for the proposition
that a district court may resentence on all counts after an appellate court remands for
resentencing on one count. See, e.g., State v. Snow, 282 Kan. 323, Syl. ¶ 11, 144 P.3d 729
(2006); State v. Finney, 139 Kan. 578, 587-88, 32 P.2d 517 (1934). In the present case,
the district court explicitly referred to Woodbury and Snow when it determined that it was
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required to resentence on all counts because they comprise a single, whole judgment. In
affirming the sentence, the Court of Appeals also relied on Woodbury and Snow.

Statutory changes to the jurisdiction of district courts to modify sentences have
superseded the Woodbury rationale. In Anthony, 274 Kan. at 1001, this court framed the
relevant question this way: "Does statutory authority exist for the modification of legal
sentences after imposition?" We concluded that a district court has no authority to modify
a sentence unless plain statutory language provides such authority. 274 Kan. at 1002.

The 1992 amendments to the Kansas sentencing statutes deprived district courts of
the jurisdiction to modify sentences except to correct arithmetic or clerical errors, to
consider or reconsider departures from presumptive sentences, or to modify sentences by
reinstating previously revoked probations. See McKnight, 292 Kan. at 779-83; State v.
McDaniel, 292 Kan. 443, 445-46, 254 P.3d 534 (2011); State v. Ballard, 289 Kan. 1000,
Syl. ¶ 10, 218 P.3d 432 (2009); State v. Miller, 260 Kan. 892, Syl. ¶ 2, 926 P.2d 652
(1996).

When it enacted the KSGA, our legislature explicitly addressed remands following
reversal. K.S.A. 21-4720(b)(5) provides that, in the event that a conviction of the primary
crime is reversed on appeal, the sentencing court is to follow all of the KSGA provisions
concerning sentencing in multiple conviction cases.

Nothing in the statutory scheme, however, allows resentencing on other
convictions following the vacating of a sentence on appeal. It is telling that the legislature
expressly set out the authority of district courts to resentence on remand, without giving
them authority to resentence on other convictions when only the sentence for the primary
conviction is vacated. It is also telling that, in repealing the old statute and replacing it
with a new version in 2010, the legislature retained the limitation to remands when the
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primary conviction is reversed. See L. 2010, ch. 136, sec. 300(b)(5). We will not add
words to the statute that would provide jurisdiction to resentence on other counts when
only the sentence on the primary conviction is vacated. This court ascertains the
legislature's intent through the statutory language it uses, and it will not read a statute to
add something not readily found in it. State v. Finch, 291 Kan. 665, Syl. ¶ 2, 244 P.3d
673 (2011).

Although Guder's sentence was vacated, his conviction was not reversed. We find
no language from the legislature allowing a district court to modify any of the sentences
that were not vacated on appeal.

We therefore vacate the modification of Guder's sentence that rendered his
sentence for the paraphernalia conviction consecutive to the manufacturing sentence, and
we reverse the decision of the Court of Appeals affirming the district court. In doing so,
we disapprove of the holding in Snow to the extent that it is contrary to this opinion.

Guder also complains that the use of his prior convictions as a factor in calculating
his sentence violated his right to a trial by jury. We decline to depart from our previous
holding to the contrary in State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002), and its
progeny.

We vacate the sentence imposed by the district court on August 19, 2008, and
remand the case to the district court for resentencing consistent with this opinion.