State v. Morningstar

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 103,433

STATE OF KANSAS,
Appellee,

v.

GARY LEE MORNINGSTAR, JR.,
Appellant.


SYLLABUS BY THE COURT

1.
The jurisdictional bar in K.S.A. 21-4721(c)(1) prohibiting review of presumptive
sentences does not extend to appellate review of a district court's interpretation of its
sentencing authority under the Kansas Sentencing Guidelines Act or an appellate court
mandate.

2.
Interpretation of an appellate court mandate and the determination whether the
district court complied with it on remand are questions of law subject to de novo review.

3.
Interpretation of sentencing statutes is a question of law subject to de novo review.
An appellate court will not read into a statute something not readily found in its text.

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4.
A district court simultaneously sentencing multiple convictions generally has
discretion to order the sentences to be served consecutively. See K.S.A. 21-4608(a);
K.S.A. 21-4720(b).

5.
When a term of imprisonment is vacated on appeal and remanded for
resentencing, the district court's authority in setting the length of the new prison term
includes determining on remand whether it will run consecutive to the defendant's other
terms of imprisonment.

6.
The Kansas Sentencing Guidelines Act permits a district court to order the
sentence for the primary crime of conviction to run consecutive to a defendant's other
sentences.

Review of the judgment of the Court of Appeals in an unpublished opinion filed May 6, 2011.
Appeal from Sumner District Court; R. SCOTT MCQUIN, judge. Opinion filed July 18, 2014. Judgment of
the Court of Appeals dismissing the appeal is reversed. Judgment of the district court is affirmed on the
issue subject to our review.

Elaine M. Esparza, of Harper, argued the cause, and Kerwin L. Spencer, of Wellington, was on
the briefs for appellant, and Gary Lee Morningstar, Jr., appellant pro se, was on a supplemental brief.

Matthew B. Metcalf, acting county attorney, argued the cause, and Evan C. Watson, county
attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

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The opinion of the court was delivered by

BILES, J.: This appeal concerns a consecutive sentence ordered after an appellate
remand in a multiple-conviction case. See State v. Morningstar, 289 Kan. 488, 495, 213
P.3d 1045 (2009) (Morningstar I). The Court of Appeals dismissed the appeal because it
determined it was without jurisdiction because the new sentence was within the
presumptive range under the Kansas Sentencing Guidelines Act (KSGA). See State v.
Morningstar, No. 103,433, 2011 WL 1878003, at *2 (Kan. App. 2011) (unpublished
opinion) (Morningstar II); see also K.S.A. 21-4721(c)(1) (no direct appeal jurisdiction
over presumptive sentences). We granted review to consider the panel's jurisdictional
analysis, as well as its determination that the district court acted properly.

We hold that the panel erred in dismissing the appeal because appellate
jurisdiction exists to determine whether the district court had authority to impose the
consecutive sentence, even if that sentence fell within the presumptive range. See State v.
Warren, 297 Kan. 881, 882-85, 304 P.3d 1288 (2013) (appellate court may consider
limited question whether district court properly interpreted sentencing statute). As to the
merits, we affirm the district court because the KSGA permits a district court imposing a
term of imprisonment upon resentencing to determine anew whether the prison term runs
consecutive to a defendant's other sentences. We also hold that a district court may
designate that the sentence for the primary crime of conviction runs consecutive to the
defendant's other sentences under the KSGA's multiple-conviction sentencing statute.

FACTUAL AND PROCEDURAL BACKGROUND

Gary L. Morningstar, Jr., was convicted of one count each of rape of a child under
14, aggravated battery, abuse of a child, and child endangerment. At his sentencing
hearing, the district court imposed an off-grid hard 25 life sentence for the rape
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conviction as required by Jessica's Law. See K.S.A. 21-4643. The court also applied the
statutory sentencing grid to impose term-of-years sentences for the remaining
convictions. See K.S.A. 21-4704. In doing so, the court used Morningstar's full criminal
history score to enhance the sentence for the aggravated battery conviction, which was
the highest severity level grid crime. See K.S.A. 21-4720(b)(2)-(4). The district court
then ordered the term-of-years sentences to run concurrent with each other and with the
off-grid hard 25 life sentence for the rape conviction. See K.S.A. 21-4608(a); K.S.A. 21-
4720(b).

In Morningstar I, this court affirmed Morningstar's convictions but vacated the
off-grid rape sentence because the jury had not determined Morningstar's age, which was
necessary to impose that sentence under K.S.A. 21-4643. In other words, Morningstar's
off-grid sentence was not lawful. See 289 Kan. at 494-95. We remanded for resentencing
on the rape conviction "as a felony on the KSGA nondrug sentencing grid." (Emphasis
added.) 289 Kan. at 495.

On remand, the parties recognized that imposing a grid sentence for rape also
implicated Morningstar's aggravated battery sentence because the rape conviction became
Morningstar's highest severity level grid offense. See K.S.A. 21-3502(c) (rape of child
under 14 a severity level 1 felony). This meant the district court was required to apply
Morningstar's full criminal history to the rape conviction, which in turn required
resentencing for the aggravated battery conviction without applying a criminal history
score. See K.S.A. 21-4720(b)(2), (3), (5); State v. Sims, 294 Kan. 821, 825, 280 P.3d 780
(2012) (sentence illegal when, e.g., it differs in character or term from that authorized by
statute).

Given those KSGA requirements, the district court sentenced Morningstar to 186
months' imprisonment for rape based on the appropriate grid box given his criminal
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history score. It also sentenced Morningstar to 43 months' imprisonment for aggravated
battery applying no criminal history score. It then ordered the rape sentence to run
consecutive to the other sentences. As a practical matter, Morningstar is required to serve
a total sentence of 229 months' imprisonment—the sum of the rape sentence and the
aggravated battery sentence (which is the longest of Morningstar's concurrent sentences
for aggravated battery, abuse of a child, and child endangerment).

Morningstar challenged whether the district court on remand could order the rape
sentence to run consecutive to his other sentences. In an unpublished opinion, the Court
of Appeals held the district court did not violate the Morningstar I mandate because the
original rape sentence was necessarily nullified as a consequence of our decision to
vacate it. The panel reasoned this allowed the district court to start over when
resentencing on that offense under the KSGA. But after engaging in this analysis and
conclusion, the panel then determined that Morningstar's sentence was not reviewable on
appeal under K.S.A. 21-4721(c)(1) because it was within the presumptive sentence range.
The panel held that Morningstar's new sentence was subject to K.S.A. 21-4721(c)(1)
(prohibition of direct appeal jurisdiction over presumptive sentences). Morningstar II,
2011 WL 1878003, at *2.

Morningstar timely petitioned this court for review, which we granted under
K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b).

We must note Morningstar raised other issues in his petition for review and in a
supplemental brief filed with this court that we do not reach because our review is limited
to what Morningstar contends the panel wrongly decided. See Supreme Court Rule
8.03(g)(1) (2013 Kan. Ct. R. Annot. 77). At oral argument, Morningstar agreed the only
questions properly presented are the panel's jurisdictional analysis and his consecutive
sentence challenge.
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DISMISSAL FOR LACK OF JURISDICTION

We address this issue first because without subject matter jurisdiction, a court
cannot address a case's merits. See State v. Huerta, 291 Kan. 831, 840-41, 247 P.3d 1043
(2011) ("If subject matter jurisdiction is in question, that issue needs to be resolved first.
The merits come second.").

Kansas appellate courts have jurisdiction to "correct, modify, vacate or reverse any
act, order, or judgment of a district court to assure that any such act, order or judgment is
just, legal and free of abuse." K.S.A. 60-2101(a), (b). Under the KSGA, appellate courts
lack jurisdiction over presumptive sentences. K.S.A. 21-4721(c)(1). But this prohibition
does not extend to appellate review of a district court's interpretation of its sentencing
authority under the KSGA. See Warren, 297 Kan. at 885 (Court of Appeals had
jurisdiction, despite sentence within presumptive range, to review claim that district court
erroneously believed it did not possess authority to impose downward departure).

Morningstar's consecutive sentencing challenge concerns not merely the ultimate
sentence imposed but the district court's authority to impose it. This is not a challenge to
a presumptive sentence precluded by K.S.A. 21-4721(c)(1). The panel erred when it
dismissed Morningstar's appeal for lack of jurisdiction. Accordingly, we consider the
merits of the challenge to his newly imposed consecutive sentence.

IMPOSITION OF CONSECUTIVE SENTENCE

Morningstar asserts three reasons why the district court could not run the rape
sentence consecutive to his other sentences: (1) Morningstar I did not permit the district
court to impose consecutive sentences on remand; (2) there was no statutory authority for
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the district court to reconsider on remand its original decision to run Morningstar's
sentences concurrent with one another; and (3) the sentence for a defendant's primary
crime of conviction cannot run consecutive to a defendant's other sentences. We disagree
with each argument.

The Morningstar I mandate

Interpretation of an appellate court mandate and the determination of whether the
district court complied with it on remand are both questions of law subject to de novo
review. See State v. Guder, 293 Kan. 763, 765, 267 P.3d 751 (2012).

In State v. Heywood, 245 Kan. 615, 618, 783 P.2d 890 (1989), the court held in a
pre-KSGA case that a mandate like the one at issue here did not prohibit a district court
from changing concurrent sentences to sentences that run consecutive with one another.
In that case, the convictions initially sentenced as class B felonies were remanded for
resentencing as class C felonies. 245 Kan. at 618. The Heywood court held that the
change from concurrent to consecutive sentences did not exceed the mandate because the
sentences imposed on remand were within the district court's statutory authority under the
then-existing sentencing scheme. The court explained that in remanding the convictions
for resentencing as class C felonies, it intended that the district court be permitted to
exercise that authority. 245 Kan. at 618.

Similarly, our decision in Morningstar I concerned only whether Morningstar
could be sentenced off-grid for rape under Jessica's Law due to the State's failure to prove
the defendant's age to the jury beyond a reasonable doubt. In ordering resentencing under
the grid, our mandate did not restrict the district court's statutory sentencing authority on
remand. It was intended only to permit the district court to exercise whatever authority it
might have under the KSGA. We consider that question next.
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Authority to modify rape sentence to run consecutive to other sentences under the KSGA

Morningstar argues the district court lacked statutory authority to order the new
rape sentence to run consecutive to his other sentences, citing language in K.S.A. 21-
4720(b)(5). He does not argue the district court's action was vindictive or violated due
process or double jeopardy.

The Court of Appeals held the district court had authority to change a sentence
from concurrent to consecutive upon resentencing as long as there was no presumption of
vindictiveness, citing Heywood, 245 Kan. at 618-20. Morningstar II, 2011 WL 1878003,
at *2. And as discussed, the panel is correct that Heywood affirmed the district court's
authority to resentence a defendant to consecutive terms when the sentence for the same
crime of conviction was remanded for resentencing.

But Heywood was decided before the KSGA's enactment, and the Heywood court
relied on the district court's broader pre-KSGA discretion when imposing a sentence in
supporting its outcome. 245 Kan. at 617-18. Subsequent decisions limiting a district
court's jurisdiction to modify a sentence under the KSGA raise questions whether
Heywood remains good law when the question concerns the district court's statutory
authority.

In State v. Miller, 260 Kan. 892, 897, 926 P.2d 652 (1996), the court held the
legislature intentionally eliminated a sentencing court's authority to modify sentences by
omitting provisions like the one that permitted pre-KSGA sentencing courts to modify
already imposed sentences within 120 days of sentencing. 260 Kan. at 897. The court
held: "'When a lawful sentence has been imposed under KSGA, the sentencing court has
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no jurisdiction to modify that sentence except to correct 'arithmetic or clerical errors'
pursuant to K.S.A. 21-4721(i)." (Emphasis added.) 260 Kan. at 900.

Admittedly, Miller is factually distinguishable because it did not involve
modification of a sentence on remand for resentencing. But the same principle—that
courts have limited jurisdiction to modify sentences—was also applied in Guder, 293
Kan. 763, which did involve resentencing of an unlawful sentence.

In Guder, which was decided after the panel issued its decision in this case, the
question concerned a multiple-conviction case in which an appellate court remanded only
the defendant's primary crime of conviction for resentencing, while leaving intact the
other convictions and sentences on those convictions. On remand, the district court
modified one of the defendant's lawful, non-vacated sentences to run consecutive to the
other sentences. In a second appeal challenging the resentencing, the defendant argued
the district court lacked authority to modify the previously imposed concurrent sentence
when resentencing for a different conviction. On review, our court agreed with the
defendant that the district court lacked authority to modify the previously imposed, non-
vacated sentence. 293 Kan. at 767.

In doing so, the Guder court noted that prior to the KSGA district courts could
resentence defendants on all counts in multiple-conviction cases, even if the sentence for
only one count was disturbed on appeal, because the sentences collectively comprised a
single, whole judgment. 293 Kan. at 765-66 (citing State v. Woodbury, 133 Kan. 1, 2, 298
P. 794 [1931], and subsequent cases). But the Guder court held that the KSGA abrogated
that earlier authority and further held that a previously imposed, lawful sentence that was
not vacated on appeal could not be modified at resentencing absent specific statutory
authority to do so. 293 Kan. at 765-66. The Guder court then examined K.S.A. 21-
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4720(b)(5) to determine whether there was statutory authority for the district court's
action. That statute states:

"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. In the event a conviction designated as the primary crime in a
multiple conviction case is reversed on appeal, the appellate court shall remand the
multiple conviction case for resentencing. Upon resentencing, if the case remains a
multiple conviction case the court shall follow all of the provisions of this section
concerning the sentencing of multiple conviction cases." (Emphasis added.) K.S.A. 21-
4720(b)(5).

The Guder court summarized this statute as providing 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."
(Emphasis added.) 293 Kan. at 766. The court then held that because the KSGA does not
provide other grounds to modify, authority to modify does not exist in a multiple-
conviction case unless the conviction for the primary crime is reversed. Applying that
rule, the Guder court held a district court lacks jurisdiction when resentencing in a
multiple-conviction case to modify non-vacated sentences for the other crimes of
conviction because only the sentence for the primary offense was vacated, the conviction
itself was not reversed. 293 Kan. at 767.

But the caveat to Guder is that the non-vacated sentences must be otherwise
lawful when the case is returned to the district court on remand. See Miller, 260 Kan. at
899 (recognizing the KSGA limits a court's powers to modify a lawful sentence). In
Morningstar's case, the district court had to correct the aggravated battery sentence as
well because it was no longer the primary offense after the off-grid rape sentence was
vacated. In other words, Morningstar's criminal history score could no longer enhance the
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aggravated battery sentence, so absent modification on remand Morningstar's aggravated
battery sentence would have been an illegal sentence. See K.S.A. 21-4720(b)(2), (3), (5);
Sims, 294 Kan. at 825 (sentence illegal when, e.g., it differs in character or term from that
authorized by statute).

Guder is distinguishable because the district court here did not modify the
sentences for any convictions that were not affected by our decision in Morningstar I.
The district court had to make changes on remand to both Morningstar's rape sentence
and his original aggravated battery sentence so that the whole judgment conformed to the
KSGA's requirements. For this reason, we reject Morningstar's argument that K.S.A. 21-
4720(b)(5) prohibited the district court from addressing the concurrent or consecutive
nature of the rape sentence. But the question still remains whether that aspect of the rape
sentence was within the district court's power to address when ensuring Morningstar's
sentences conformed to the KSGA. We hold that it was.

The sentence for each crime of conviction is multifaceted. In some cases, it
encompasses confinement or other manners of durational punishment (such as probation),
the place and duration of such punishments, monetary penalties (fines, fees, expenses, or
restitution), and offender registration and postrelease supervision requirements. See
K.S.A. 21-4603d; K.S.A. 21-4608; K.S.A. 21-4704; K.S.A. 21-4720. The panel
concluded that the district court was "required to resentence Morningstar de novo, as if he
had never been sentenced on the crime before." Morningstar, 2011 WL 1878003, at *1.
In so stating, the panel's analysis seemingly implicates all aspects of a defendant's
sentence. But this would far exceed what the district court actually did and what
Morningstar challenges. We are solely concerned with the district court's decision to run
the newly imposed rape sentence consecutive to Morningstar's other sentences.

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The district court was tasked with imposing a grid sentence for the rape
conviction. At minimum, it needed to exercise its discretion and select the appropriate
term of months from the range supplied by the applicable grid block. See K.S.A. 21-
4704(e)(1). But selecting the term from the applicable grid box is not the only decision a
district court must make in determining a grid sentence's length. See K.S.A. 21-4716
(providing mechanism for departing from presumptive sentences supplied by KSGA
grid); K.S.A. 21-4720(a) (providing discretion to run sentences consecutive in multiple-
conviction cases).

In cases like Morningstar's involving multiple convictions, whether a sentence
runs consecutive to the defendant's other sentence or sentences is related, if not
intertwined, with the sentencing court's discretion to choose the appropriate term of
months. See K.S.A. 21-4720(a), (b) (consecutive sentences yield prison term equal to
sum of the consecutive terms); see also State v. Stafford, 255 Kan. 807, 816-20, 878 P.2d
820 (1994) (upholding pre-KSGA consecutive sentences as within sentencing court's
discretion when district court considered statutory factors for determining sentences'
minimum terms in ordering sentences to run consecutively). The district court necessarily
had to apply the KSGA provisions governing the terms of grid sentences to determine the
sentence's length. In doing so, the district court had to exercise its independent
judgment—within the limitations imposed by the KSGA—to determine the appropriate
sentence.

We hold that running the new rape sentence consecutive to the other sentences
was a permissible mechanism available to the district court under the KSGA for
regulating the sentence's length. The district court properly addressed the facets of
Morningstar's vacated rape sentence that were before it on remand, which included
whether the new sentence should run consecutive to the other sentences.

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Authority to run sentence for primary crime of conviction consecutive to other sentences

Finally, Morningstar argues K.S.A. 21-4720 prohibited the district court from
ordering the sentence for his primary crime, rape, to run consecutive to his other
sentences. Interpretation of the sentencing statutes is a question of law subject to
unlimited review. See Guder, 293 Kan. at 765.

Morningstar does little to develop this argument, which hinders the analysis. But
essentially he contends the sentencing guidelines require the base sentence to be
established first and only after that can a sentence for a nonbase crime be determined,
including whether it runs consecutive to the base sentence. We do not find this
requirement in the statutes.

K.S.A. 21-4608 and K.S.A. 21-4720 both permit a district court to run two or
more sentences consecutive with one another. In multiple-conviction cases, K.S.A. 21-
4720 does not dictate the order in which consecutive grid sentences must be imposed or
served. More precisely, the statute does not say the sentence for a primary crime cannot
be run consecutive to another sentence or sentences.

In any event, it is inconsequential whether the sentence for a primary crime is
consecutive to another grid sentence, or whether the converse is true. All consecutive grid
sentences are aggregated into a single controlling sentence. See K.S.A. 21-4720(b)(1).
What matters is only whether the sentences are consecutive with one another and,
therefore, aggregated; or concurrent with one another and, therefore, not aggregated. And
while authorizing the district court to impose consecutive sentences, K.S.A. 21-4720
contains no express prohibition against running the sentence for a primary crime of
conviction consecutive to a defendant's other sentences. We will not read into the statute
a prohibition that does not exist in its text.
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We hold the district court did not err when it ordered the rape sentence to run
consecutive to Morningstar's other sentences. The net result, which is a controlling 229-
month prison term, is in harmony with the statute. The Court of Appeals decision
dismissing the case for lack of jurisdiction is reversed. The sentence imposed by district
court is affirmed.

* * *

JOHNSON, J., dissenting: While I agree with the majority that the Court of Appeals
erred in finding no jurisdiction to review the district court's application of the Kansas
Sentencing Guidelines Act (KSGA), I disagree with the majority's determination that the
sentencing court, on remand, had authority to order consecutive sentencing. I disagree
with the majority's rationale on more than one level.

First, I discern that our holding in State v. Guder, 293 Kan. 763, 267 P.3d 751
(2012), affects our analysis in this case, although it does not completely resolve our
current question. Guder involved a resentencing after the Court of Appeals had vacated
the sentence on the primary crime because the original sentencing court had used an
incorrect severity level for that crime. The mandate did not vacate any of the other
nonbase sentences. On remand, the district court changed one of the nonbase sentences to
run consecutive to, rather than concurrent with, the newly imposed base sentence. The
district court relied on State v. Woodbury, 133 Kan. 1, 2, 298 P. 794 (1931), and its
progeny, which stood for the proposition that "a sentence pronounced following
conviction is a singular entity that cannot be subdivided into correct and erroneous
counts, and the sentencing court therefore [has] the latitude on remand to modify its
original sentence on all counts, including those for which no error [has] been found."
Guder, 293 Kan. at 765.
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The unanimous Guder court, which included all of the members of the majority in
this case, found that the KSGA required the reversal of the district court's modification of
the non-vacated, nonbase sentences, specifically noting that"[s]tatutory changes to the
jurisdiction of district courts to modify sentences have superseded the Woodbury
rationale." 293 Kan. at 766. In other words, where the appellate court vacates one of the
sentences in a multiple-conviction case, the district court does not have the authority "to
modify any of the sentences that were not vacated on appeal." 293 Kan. at 767.
Moreover, changing a sentence from concurrent to consecutive is a sentence
modification.

The majority acknowledges Guder but curiously discusses the factual distinction
in this case that required the resentencing court to change the primary offense from the
aggravated battery conviction to the rape conviction. First, I would note that the
resentencing court pronounced that the rape conviction would be imposed consecutively.
See Abasolo v. State, 284 Kan. 299, 303-04, 160 P.3d 471 (2007) (A sentence is effective
upon pronouncement from the bench, regardless of the court's intent at the time the
sentence is pronounced.). The district court did not say that it was modifying the
aggravated battery sentence from concurrent to consecutive. See State v. Spear, 297 Kan.
780, 798, 304 P.3d 1246 (2013) (K.S.A. 21-4608 provides that sentences shall be served
concurrently where judge fails to pronounce how they will be served); State v. Jackson,
262 Kan. 119, 140, 936 P.2d 761 (1997) ("The sentence . . . was effective when
pronounced. Because the record of the sentencing hearing is silent as to whether the
sentence should run concurrently or consecutively, the sentence must be served
concurrent with the other sentences."). Accordingly, I fail to see how the need to
recalculate the prison term on the aggravated battery sentence affects whether the rape
sentence could be imposed consecutively.

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Likewise, I would not interpret the court's right to correct an illegal sentence under
K.S.A. 22-3504 as providing the authority to modify the lawful portions of that sentence
in violation of K.S.A. 21-4721(i). When the rape sentence was remanded for
resentencing, the term of imprisonment on the aggravated battery became an illegal
sentence because it did not conform to the applicable statutory provisions with regard to
the term of authorized punishment. See Makthepharak v. State, 298 Kan. 573, 578, 314
P.3d 876 (2013) (An illegal sentence is defined, in part, as a "'sentence that does not
conform to the applicable statutory provision, either in the character or the term of
authorized punishment.'"); State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013). To
correct the illegality in the aggravated battery sentence, which was not vacated on appeal,
the grid box prison term had to be recalculated. But the order to serve the aggravated
battery sentence concurrently did not need to change to effect a legal sentence.
Accordingly, changing the sentence to consecutive would be a prohibited modification
rather than a permitted correction. Guder suggests that only the vacated or erroneous
portions of a sentence may be modified on remand.

The majority does mention the true distinction between our case and Guder, which
is that the district court ostensibly modified the vacated sentence rather than modifying
one of the non-vacated sentences. Perhaps one could debate whether a district court has
the authority to do indirectly what it is prohibited from doing directly, e.g., whether a
court can modify the vacated sentence to run consecutive to the non-vacated sentences
when the non-vacated sentences are not amenable to being modified to run consecutive to
the vacated sentence. But we need not decide that question today. Because the vacated
sentence became the primary or base sentence, it was imposed first and, therefore, it
could not have been imposed consecutive to itself.

The majority finds authority to run a base sentence consecutive to the nonbase
sentences from the fact that K.S.A. 21-4720 does not expressly prohibit it, i.e., the statute
17



is silent about which sentence is imposed first and which are then imposed consecutively.
In other contexts, we have found that statutory silence is the equivalent of an ambiguity.
See State v. Holman, 295 Kan. 116, 149-50, 284 P.3d 251 (2012) (If the legislature's
intent is unclear as to the unit of prosecution defined by a statute, for the purposes of
double jeopardy analysis, the rule of lenity applies, which provides that statutory silence
and ambiguity regarding the unit of prosecution is construed in favor of the defendant.);
State v. Thompson, 287 Kan. 238, 249, 200 P.3d 22 (2009) ("Under the rule of lenity,
statutory silence and ambiguity regarding the unit of prosecution is construed in favor of
the defendant."); Bradley v. Sudler, 172 Kan. 367, 371, 239 P.2d 921 (1952) (recognizing
that statute was ambiguous based on silence).

But we need not rely solely upon silence to find ambiguity in K.S.A. 21-4720,
which is the statute addressing sentencing in multiple conviction cases. The provisions in
subsection (b)(4) address limiting the total prison sentence to twice the base sentence and
include the following statement: "This limit shall apply only to the total sentence, and it
shall not be necessary to reduce the duration of any of the nonbase sentences imposed to
be served consecutively to the base sentence." (Emphasis added.) K.S.A. 21-4720(b)(4).
Subsection (b)(4) is not linguistically or conceptually consistent with the notion that a
base sentence can be imposed consecutive to the nonbase sentences. In that instance, the
base sentence would be the one that need not be reduced to meet the twice-the-base limit.
On the other hand, the language of the subsection supports the reasonable and sensible
interpretation that the base sentence is imposed first and the nonbase sentences are then
imposed either concurrent with or consecutive to the base sentence.

At the very least, the provisions of K.S.A. 21-4720 are ambiguous about whether a
base sentence for the primary crime is amenable to being designated as consecutive to the
nonbase sentences for the remaining crimes. Where ambiguity exists, the rule of lenity
dictates that a court strictly construe a criminal statute for the benefit of the defendant,
18



resolving any reasonable doubt as to the statute's meaning in favor of the accused. State v.
LaGrange, 294 Kan. 623, Syl. ¶ 2, 279 P.3d 105 (2012). If there are two reasonable and
sensible interpretations of a criminal statute, the rule of lenity requires the court to adopt
the one that favors the accused. State v. Coman, 294 Kan. 84, 97, 273 P.3d 701 (2012).

The other reason the majority gives for allowing the base sentence to be the one
that is imposed consecutively is that "it is inconsequential." But, of course, the additional
3 years and 7 months that Morningstar will be required to remain in prison under the
majority's interpretation of the applicable statutes will likely be of some consequence to
him. In other words, the interpretation favoring the accused in this instance is that the
base sentence for the primary crime is imposed first and it is not amenable to being
imposed consecutive to later imposed nonbase sentences.

Consequently, I would find that the district court erred in resentencing, and I
would vacate that portion of the rape sentence that unlawfully ordered it to be served
consecutive to the nonbase offenses that were not before the court for resentencing.

BEIER, J., joins in the foregoing dissent.