State v. Crutchfield

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NOT DESIGNATED FOR PUBLICATION

Nos. 118,021
118,022

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

FRANK L. CRUTCHFIELD,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed June 1,
2018. Affirmed in part, vacated in part, and remanded with directions.

Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before POWELL, P.J., ATCHESON and BRUNS, JJ.

POWELL, J.: In State v. Crutchfield, No. 115,548, another panel of this court
granted Frank L. Crutchfield relief under Dickey I and II and remanded the case for
resentencing using the proper criminal history score. At resentencing, the district court
modified the sequencing of Crutchfield's sentences not only for his challenged sentences
which had been vacated by this court, but also for Crutchfield's other legal sentences
which had gone unchallenged in the first appeal. Although Crutchfield's criminal history
score was recalculated downward from A to E, his total term of incarceration increased
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from 101 months to 106 months. Crutchfield now appeals his resentencing, claiming the
district court was without authority to modify the legal sentences which were originally
imposed and left undisturbed from the first appeal. We agree and, therefore, vacate the
district court's modification of Crutchfield's legal sentences and remand with directions.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2010, a jury convicted Crutchfield of one count each of burglary, felony
criminal damage to property, misdemeanor theft, and misdemeanor criminal damage to
property in case 09CR1837. One month later, pursuant to a plea agreement that
consolidated three separate cases—09CR2726, 09CR3051, and 10CR1093—Crutchfield
entered guilty pleas to three counts of burglary, one count of felony theft, one count of
misdemeanor theft, and one count of misdemeanor criminal damage to property.

On July 2, 2010, based on a criminal history score of A applied to the primary
crime of burglary and applying a criminal history score of I to the other felony count,
Sedgwick County District Judge Clark Owens sentenced Crutchfield in 09CR1837 as
follows:

 Count 1: Burglary (felony) – 34 months in prison
 Count 2: Theft (misdemeanor) – 12 months in jail
 Count 3: Criminal damage to property (felony) – 7 months in prison
 Count 4: Criminal damage to property (misdemeanor) – 6 months in jail

The court ordered the two felony conviction sentences to be served consecutive to one
another but ordered the misdemeanor sentences to be served concurrent with each other
and the felonies. This gave Crutchfield a total controlling sentence in 09CR1837 of 41
months in prison and 12 months of concurrent jail time.

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On the same day, again applying a criminal history score of A to the primary
crime of burglary in 10CR1093 and applying a criminal history score of I to the other
felony counts, Judge Owens sentenced Crutchfield in his consolidated cases—09CR2726,
09CR3051, and 10CR1093—as follows:

09CR2726
 Count 1: Burglary (felony) – 12 months in prison
 Count 2: Theft (misdemeanor) – 12 months in jail
09CR3051
 Count 1: Burglary (felony) – 12 months in prison
 Count 2: Theft (felony) – 6 months in prison
 Count 3: Criminal damage to property (misdemeanor) – 6 months in jail
10CR1093
 Count 1: Burglary (felony) – 30 months in prison

The court ordered that the sentences for the four felony convictions be served consecutive
to one another but the sentences for the two misdemeanor convictions be served
concurrent with each other and the felonies. This equated to a controlling sentence of 60
months in prison and 12 months of concurrent jail time. The district court ordered the
sentence in the consolidated cases to run consecutively to Crutchfield's sentence in
09CR1837. Thus, Crutchfield's total sentence in all four cases was 101 months in prison
with 24 months of concurrent jail time.

In 2014, Crutchfield moved to correct an illegal sentence, arguing that three prior
burglary convictions in his criminal history—committed before enactment of the Kansas
Sentencing Guidelines Act (KSGA), K.S.A. 2017 Supp. 21-6801, et seq.—were
improperly classified as person offenses in light of this court's opinion in State v. Dickey,
50 Kan. App. 2d 468, 329 P.3d 1230 (2014), aff'd 301 Kan. 1018, 350 P.3d 1054 (2015).
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Crutchfield argued that, as a result, an incorrect criminal history score had been applied
to the primary crimes in his two cases resulting in illegal sentences. District Judge John
Kisner denied this motion on the grounds that Dickey was not to be applied to cases
already final, and Crutchfield appealed to this court.

On January 31, 2017, this court issued an order granting Crutchfield his requested
relief, which reads, in its entirety:

"Based on a review of the records and briefs on file with the Clerk of the
Appellate Courts it is clear that appellant is arguing that the trial court erred in including
his three Kansas pre 1993 convictions for burglary as person crimes when computing his
criminal history score for the present offenses contrary to our Supreme Court's decisions
in State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015), and State v. Dickey, 305 Kan.
217, 380 P.3d 230 (2016) (Dickey II). The State concedes the error and we agree.

"This sentence in this case is vacated and the case remanded to the district court
for recalculation of appellant's criminal history score under Dickey. The Clerk of the
Appellate [C]ourts is directed to file the mandate without delay."

The mandate issued by the Clerk of the Appellate Courts stated: "[I]t was ordered
and adjudicated by the Court of Appeals that the appellant's sentence be vacated and the
case remanded for recalculation of appellant's criminal history score."

Prior to resentencing, the district court requested a new presentence investigation
reports (PSI) for 09CR1837 and the three consolidated cases. The PSI in the three
consolidated cases reflected the addition to Crutchfield's criminal history of a previously
overlooked conviction for no valid driver's license; this charge was included in the
original PSI for 09CR1837. The PSIs also included two convictions in Crutchfield's
criminal history that occurred subsequent to his original sentencing in July 2010—one for
aggravated escape from custody and one for theft, both nonperson offenses. The PSIs
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gave Crutchfield a new lower criminal history score of E. Parenthetically, we note the
PSI for the consolidated cases incorrectly calculated the presumptive sentences for the
nonprimary felony crimes by applying the new criminal history score to them as well,
contrary to K.S.A. 2017 Supp. 21-6819(b)(5), which forbids the application of a
defendant's criminal history score to calculate nonbase sentences.

On April 7, 2017, District Judge Christopher Magana resentenced Crutchfield. At
resentencing, both parties agreed that Crutchfield's new criminal history score was E.
Rather than resentencing Crutchfield on only the primary crimes to which the incorrect
criminal history score had been applied, the court treated the sentencing as a "brand new
sentencing" and modified Crutchfield's nonbase sentences as well.

Crutchfield was resentenced in 09CR1837 as follows:

 Count 1: Burglary (felony) – 23 months in prison
 Count 2: Theft (misdemeanor) – 12 months in jail
 Count 3: Criminal damage (felony) – 7 months in prison
 Count 4: Criminal damage (misdemeanor) – 6 months in jail

All of the sentences were ordered to run consecutive to one another for a total sentence of
30 months in prison followed by 18 months in jail. Thus, in 09CR1837, Crutchfield's new
period of incarceration was 48 months, whereas his original sentence was 41 months of
incarceration.

Crutchfield was also resentenced in his consolidated cases as follows:

09CR2726
 Count 1: Burglary (felony) – 19 months in prison
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 Count 2: Theft (misdemeanor) – 12 months in jail
09CR3051
 Count 1: Burglary (felony) – 21 months in prison
 Count 2: Theft (felony) – 6 months in prison
 Count 3: Criminal damage (misdemeanor) – 6 months in jail
10CR1093
 Count 1: Burglary (felony) – 21 months in prison

We note that the primary crime of burglary in 10CR1093 contains a lower sentence due
to the reduced criminal history score of E. However, the nonprimary felony crimes of
burglary in 09CR2726 and burglary in 09CR3051 contain higher sentences, presumably
as a result of the incorrect application of Crutchfield's criminal history score to those
counts. As had been done at Crutchfield's original sentencing, the district court also
ordered that the sentences for his burglary convictions in 09CR2726 and 10CR1093 run
consecutive to one another. But the district court changed the concurrent or consecutive
nature of the other sentences by ordering that all remaining sentences for the felony
counts be served concurrent with the felony sentences referenced above and that all the
sentences for misdemeanor counts be served consecutive to each other and to the
felonies. Thus, Crutchfield's new controlling sentence in the consolidated cases was 40
months in prison followed by 18 months in jail for a total period of incarceration of 58
months, whereas under his original sentence it was 60 months of incarceration.

Finally, as had been done at the original sentencing, the district court ordered that
Crutchfield's sentences in the consolidated cases run consecutive to his sentences in
09CR1837. Therefore, Crutchfield's new overarching sentence in all four cases was 70
months in prison followed by 36 months in jail, totaling 106 months of incarceration. As
previously discussed, his original overarching sentence in all four cases was 101 months
in prison with 24 months of concurrent jail time, totaling 101 months of incarceration.

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Crutchfield's counsel filed a timely motion to reconsider the sequencing of the
sentences on April 21, 2017. Crutchfield also filed a similar pro se motion.

Judge Magana took up these motions at a hearing on April 28, 2017. Among other
things, Crutchfield's counsel argued that the district court had acted beyond the scope of
this court's mandate by ordering that the sentences for the misdemeanor counts run
consecutively and that the sentence was vindictive and retaliatory. The State countered
that based on the remand for resentencing, there was no sentence of any kind in place, the
legal position and posture of the district court was a position of presentencing, and the
sentencing process started anew with new PSIs. The district court ultimately concluded:

"So the remand from the Court of Appeals mandate in this matter simply vacated
the sentence. It did not vacate the felony sentence and state that the misdemeanor
sentences would stand. It did not place any sort of limitations that—and the Court was
only to address certain issues. It vacated the sentences, sent it back for a recalculation
following Dickey. That's what occurred. We got new PSIs.

"So at that point there is no sentence in either case. The matter comes back for
complete resentencing, based on the language of the remand, and that is what occurred."

Judge Magana then stated that if this court had intended to limit the scope of the
remand, it would have done so explicitly and just vacated the sentences for the two
primary felony crimes. Explained the court:

"I would also note on another practical aspect of this, which is that any time a
judge makes a sentence with multiple cases or one case and the judge is considering what
overall sentence, amount of time in prison is appropriate, they look at whether they're
going to give the low, mid, or high number, they decide whether that's sufficient. They
decide whether additional time is necessary, whether counts are run consecutive as to
felonies or whether misdemeanor time needs to be put into play.

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"I would assume Judge Owens made that same calculation and determined that
the primary counts running consecutive under those situations were sufficient. I think a
judge sentencing at a later date has that same ability to look at what they believe is an
appropriate sentence for the crimes."

The district court denied the motions and determined that the remand for
resentencing required resentencing on Crutchfield's felonies and misdemeanors and there
was no merit to the allegation that the sentencing was vindictive and retaliatory.

Crutchfield timely appeals both his resentencing and the denials of the motions to
reconsider. Both appeals have been consolidated by this court.

DID THE DISTRICT COURT ERR IN RESENTENCING CRUTCHFIELD?

On appeal, Crutchfield argues the district court erred in his resentencing for two
reasons: (1) the district court went outside the scope of this court's mandate because the
remand did not permit a complete resentencing; and (2) the district court did not have
authority to modify Crutchfield's legal sentences.

"Whether a district court has complied with the mandate of an appellate court is a
question of law over which we exercise plenary review." State v. Tafoya, 304 Kan. 663,
666, 372 P.3d 1247 (2016). Known as the "mandate rule," K.S.A. 60-2106(c) provides:

"When . . . a decision of an appellate court becomes final, such court shall promptly
cause to be transmitted to the clerk of the district court its mandate containing such
directions as are appropriate under the decision. A copy of the opinion of the court shall
accompany and be a part of the mandate. . . . Such mandate and opinion, without further
order of the judge, shall thereupon be a part of the judgment of the court if it is
determinative of the action, or shall be controlling in the conduct of any further
proceedings necessary in the district court."
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First, we must determine the scope of the remand in Crutchfield's prior appeal.
Crutchfield argues that the remand from this court did not permit a complete
resentencing, only a resentencing of the primary crimes to which his incorrect criminal
history score was applied. In response, the State argues that because this court knows
how to properly tailor remands to limit their scope—and did not do so here—the district
court did not err in the execution of the remand.

The State's argument is meritless. In Tafoya, 304 Kan. at 670, our Supreme Court
held that "the substance of the Court of Appeals ruling controls over the form its ruling
takes. 'The law of this state is realistic. Substance prevails over form.' [Citations
omitted.]" Because of the nature of Crutchfield's first appeal and the en masse filings of
appeals brought about by our Supreme Court's holdings in Dickey I and II, the State
ultimately conceded error, and our court issued Crutchfield relief via an order, rather than
a formal opinion, which contained admittedly broad remand language. However, a review
of the briefs filed in that case and the original motion to correct an illegal sentence
contained in the record on appeal indicate that there was no challenge made to the
nonbase sentences to which Crutchfield's criminal history score was not applied.
Crutchfield only challenged the application of his criminal history score of A to his two
primary crimes—the two burglary convictions from 09CR1837 and 10CR1093.
Therefore, the substance—rather than the form—of the remand was to vacate
Crutchfield's base sentences for his primary crimes in 09CR1837 and 10CR1093. The
district court went outside the scope of the remand.

Second, Crutchfield argues that because the district court exceeded the scope of
the remand, it was without the legal authority to modify Crutchfield's other sentences. In
response, the State argues that interpretation of the KSGA permits the resentencing of all
convictions upon remand.

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An illegal sentence, as contemplated by K.S.A. 22-3504(1), is "'(1) a sentence
imposed by a court without jurisdiction; (2) a sentence that does not conform to the
applicable statutory provision, either in the character or the term of the authorized
punishment; or (3) a sentence that is ambiguous with respect to the time and manner in
which it is to be served.' [Citations omitted.]" State v. Gray, 303 Kan. 1011, 1014, 368
P.3d 1113 (2016). K.S.A. 22-3504(1) provides that a court may correct an illegal
sentence at any time. Further, an appellate court "may correct an illegal sentence sua
sponte." State v. Rogers, 297 Kan. 83, Syl. ¶ 6, 298 P.3d 325 (2013). Determining the
legality of a sentence is a question of law subject to our unlimited review. State v.
Warren, 307 Kan. 609, 612, 412 P.3d 993 (2018).

"A sentence is effective when pronounced from the bench. A sentence is the
judgment of the court that formally declares to the accused the legal consequences of his
or her conviction. The final judgment in a criminal case is the sentence. Once sentence is
pronounced and judgment entered, the district court loses jurisdiction over a criminal
case except to correct arithmetic or clerical errors.

"Likewise, a district court has no authority to modify unchallenged sentences
following a remand by an appellate court except when modification is needed to correct
arithmetic or clerical errors. The only other exception occurs when a sentence is
determined to be illegal within the meaning of K.S.A. 22-3504, which may happen at any
time. Thus, on remand from a higher court, absent narrow exceptions, a district court's
jurisdiction to resentence or otherwise deviate from an already pronounced sentence is
limited to the express instructions contained in the higher court's mandate. [Citations
omitted.]" Tafoya, 304 Kan. at 666-67.

The Kansas Supreme Court has "repeatedly held that the [KSGA] governs the
jurisdiction of courts to impose sentences. . . . [I]n 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." State v. Guder, 293 Kan. 763, 763, 267 P.3d 751
(2012). Once the district court has pronounced the sentence from the bench it may not
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modify a sentence unless it has explicit statutory authority to do so. 293 Kan. 763, Syl.
¶ 2. The KSGA "does not grant district courts the authority to modify sentences following
remand unless the primary conviction was reversed on appeal." (Emphasis added.) 293
Kan. 763, Syl. ¶ 3.

In Guder, the district court modified Guder's manufacturing a controlled substance
sentence as directed by the Court of Appeals, but it also modified the possessing drug
paraphernalia sentence from concurrent to consecutive. Our Supreme Court held:

"When it enacted the KSGA, our legislature explicitly addressed remands
following reversal. K.S.A. 21-4720(b)(5) [now codified as K.S.A. 2017 Supp. 21-6819]
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
primary conviction is reversed. 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.

"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.

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"We therefore vacate the modification of Guder's sentence that rendered his
sentence for the paraphernalia conviction consecutive to the manufacturing sentence."
293 Kan. at 766-67.

"When multiconviction cases are remanded for resentencing, the [KSGA]
prohibits district courts from modifying sentences that have not been vacated by the
appellate court. An exception exists when the district court must alter such a sentence as a
matter of law to avoid an illegal sentence." Warren, 307 Kan. 609, Syl. ¶ 1. Although not
directly applicable here, we note that our Supreme Court recently held—while explicitly
affirming Guder—that when a base sentence for a primary crime originally imposed
concurrently to other sentences is vacated, the district court is prohibited from imposing
such a sentence consecutively upon resentencing. 307 Kan. at 610.

Finally, in case there is any doubt, we specifically note that these rules also apply
to misdemeanor sentences. Our research has not uncovered and the State has not provided
any authority suggesting otherwise. The only difference we find with regard to
misdemeanor sentencing is that K.S.A. 2017 Supp. 21-6608(b) allows a district court the
discretion to grant parole to a misdemeanant incarcerated in the county jail even after the
court has imposed a lawful misdemeanor sentence.

Here, Crutchfield's primary convictions were not reversed on appeal, and the
KSGA did not permit the district court to modify Crutchfield's nonbase sentences that
were not vacated by this court unless such a modification was needed to avoid an illegal
sentence or to correct arithmetic or clerical errors. As our court only vacated Crutchfield's
base sentences because Crutchfield's incorrect criminal history score was applied only to
those primary crimes and Crutchfield made no challenge to any of his nonbase sentences
on appeal, we hold that the district court both exceeded the scope of this court's mandate
and was without the legal authority to modify Crutchfield's nonbase sentences.

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Accordingly, we hold that Crutchfield's base sentence for the primary crime of
burglary in 09CR1837, which the district court ordered upon resentencing to be 23
months in prison, is a legal sentence and is affirmed. Similarly, we hold that Crutchfield's
base sentence for the primary crime in his consolidated cases, burglary in 10CR1093,
which the district court ordered upon resentencing to be 21 months, is a legal sentence
and is affirmed. Given that Crutchfield's nonbase sentences were not rendered illegal by
this court's earlier remand order and could not be modified, we simply vacate any of the
district court's alterations of these sentences and reinstate Crutchfield's original nonbase
sentences. The case is remanded to the district court to prepare a revised sentencing
journal entry to reflect the following legal sentences already imposed from the bench:

09CR1837
Count 1: Burglary (felony) (primary crime) – 23 months in prison
Count 2: Theft (misdemeanor) – 12 months in jail
Count 3: Criminal Damage to Property (felony) – 7 months in prison
Count 4: Criminal Damage to Property (misdemeanor) – 6 months in jail

As originally sentenced, the sentence for count 3 is to run consecutive to the sentence for
count 1, while the sentences for counts 2 and 4 are to run concurrently, for a total term of
incarceration of 30 months.

09CR2726
Count 1: Burglary (felony) – 12 months in prison
Count 2: Theft (misdemeanor) – 12 months in jail
09CR3051
Count 1: Burglary (felony) – 12 months in prison
Count 2: Theft (felony) – 6 months in prison
Count 3: Criminal Damage to Property (misdemeanor) – 6 months in jail
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10CR1093
Count 1: Burglary (felony) (primary crime) – 21 months in prison

As originally sentenced, the sentence for count 1 in 09CR2726 is to run consecutive to
the sentence for count 1 in 10CR1093, and the sentences for counts 1 and 2 in 09CR3051
are to run consecutive to each other, to the sentence for count 1 in 09CR2726, and to the
sentence for count 1 in 10CR1093. All other counts in the consolidated cases are to run
concurrently for a total term of incarceration of 42 months. We also note that consecutive
prison sentences cannot exceed twice the base sentence, which in the consolidated cases
is 21 months. See K.S.A. 2017 Supp. 21-6819(b)(4). If such a rule were not in place, the
total term of incarceration would otherwise be 51 months. Finally, the sentence for
09CR1837 is to run consecutive to the sentence in the consolidated cases, giving
Crutchfield a total overarching sentence for all four cases of 72 months in prison.

The judgment of the district court is affirmed in part, vacated in part, and
remanded with directions.