State v. McCroy

1

NOT DESIGNATED FOR PUBLICATION

Nos. 116,101
116,102

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

PATRICK MICHAEL MCCROY,
Appellee.


MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed June 23, 2017. Affirmed.

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellant.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellee.

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

Per Curiam: The State has appealed a ruling of the Reno County District Court
clarifying an otherwise confusing pronouncement of sentences on Defendant Patrick M.
McCroy in two criminal cases that were handled in a single probation revocation hearing.
Under the circumstances—where the district court promptly informed the parties of its
concern about the way it haphazardly articulated the sentences and the hearing transcript
confirms an ambiguity—we find no error. The district court acted within the scope of
K.S.A. 22-3504(1), governing the correction of illegal sentences, and we, therefore,
affirm.

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In the first case, McCroy entered pleas to and was convicted of felony possession
of marijuana and three other charges. The district court sentenced him to a controlling
term of 34 months in prison and placed him on probation. McCroy didn't fare well on
probation. The district court repeatedly revoked and reinstated his probation while
imposing escalating sanctions for the violations.

While he was on probation in that case, McCroy was charged with and later
pleaded guilty to aggravated robbery. The district court sentenced McCroy to 216 months
in prison in that case but granted a downward dispositional departure to probation for 36
months. McCroy again violated the terms of his probation—for what appears to have
been the fifth time in the marijuana case and the first time in the aggravated robbery case.
The district court revoked McCroy's probation in both cases, required him to serve 180
days in the county jail as a condition of reinstatement, and extended the probationary
terms.

On June 3, 2016, McCroy appeared on yet another probation violation for having
tested positive for alcohol, marijuana, and methamphetamine. He stipulated to the
violation. McCroy's lawyer spoke about his client's deep-seated drug addiction that
seemed to be a companion to McCroy's continuing criminal problems and his inability to
abide by the conditions of probation. McCroy similarly explained himself to the district
court. The State recounted the repeated opportunities given McCroy to do better and his
repeated failures to seize those opportunities. The district court found McCroy violated
his probation in each case but took the disposition of the violations under advisement to
review an extended drug treatment program McCroy's lawyer had described as a prison
alternative to which McCroy would be amenable if he were granted another reinstatement
in each case.

On June 17, the district court reconvened the probation revocation hearing for the
limited purpose of entering dispositions in the cases based upon its decision 2 weeks
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earlier to revoke McCroy's probation. The district court stated it found the suggested drug
treatment program unsuitable and prepared to announce McCroy's fate in the two cases.
The district court did so in an exceptionally abbreviated fashion—the transcript of the
entire hearing doesn't fill three pages. Without citing either case or mentioning any
specific term of incarceration, the district court referred to McCroy serving his
sentences—plural—at one point and to serving his sentence—singular—at another. The
district court did not refer to concurrent or consecutive sentences, although statutorily
they necessarily would have been consecutive. See K.S.A. 2016 Supp. 21-6606(c).
McCroy thanked the district court and suggested he might become a better person after
serving 20 years in prison. The district court immediately closed the hearing with a few
words of hope for McCroy's ultimate success.

Several hours later, the district court contacted the lawyers both to say it believed
the sentencing pronouncement might have been unclear and to reconvene the hearing to
clarify the record. The State filed an objection, arguing the district court had pronounced
a lawful sentence and, therefore, had no jurisdiction to alter the dispositions announced
from the bench. See State v. Ballard, 289 Kan. 1000, Syl. ¶ 10, 218 P.3d 432 (2009);
State v. Stephens, 266 Kan. 886, 894, 975 P.2d 801 (1999). The district court then filed
what it described as its own "motion for reconsideration" and set a hearing for June 22.

At the hearing, the district court explained it believed its pronouncement of
sentence on June 17 was not clear as rendered from the bench. So the district court stated
it had reconvened the proceedings to fully and accurately place on the record the
dispositions it imposed on June 17. The district court sentenced McCroy to serve the 34-
month term of imprisonment in the marijuana case and reinstated his probation in the
aggravated robbery case. The State has appealed.

On appeal, the State reprises the jurisdictional argument presented in the district
court: After a district court imposes a lawful sentence on a defendant, it no longer has
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jurisdiction to modify that sentence. As we have indicated, the legal principle is correct.
But that principle does not apply here. The district court did not impose lawful sentences
in its short, unfocused pronouncement at the June 17 hearing.

As provided in K.S.A. 22-3504(1), a district court may correct an illegal sentence
at any time. When the district court acted, the statute did not include a definition of what
constituted an illegal sentence, but the Kansas Supreme Court had provided one.
According to the court, a sentence was illegal within the meaning of K.S.A. 22-3504(1)
if: (1) the district court lacks jurisdiction to impose it; (2) it fails to conform to the law in
character or term; or (3) it is ambiguous in some material way as to how it must be served
or otherwise satisfied. State v. Sims, 294 Kan. 821, Syl. ¶ 3, 280 P.3d 780 (2012). Earlier
this year, the legislature codified that judicial definition. See K.S.A. 22-3504(3), as
amended by L. 2017, ch. 62, § 9 (illegal sentence includes one that "is ambiguous with
respect to the time and manner in which it is to be served at the time it is pronounced").
Notwithstanding the district court's description of its endeavor as "reconsideration," it
really acted to fix an otherwise illegal sentence.

Given the exceptionally unsystematic and abbreviated way the district court
recited its disposition of the probation revocations, we believe the pronouncements were
sufficiently ambiguous as to be illegal as outlined in the third category. As we have
indicated, the district court did not cite each case specifically and did not state a sentence
in months or any other measure for either case. The district court referred both to a
sentence and to sentences to be served. Upon revoking probation, a district court has an
array of options. It can reinstate probation with or without various sanctions, including
periods of incarceration up to 180 days. K.S.A. 2016 Supp. 22-3716. Alternatively, it can
decline to reinstate and, thus, require a defendant to serve the original sentence imposed
or a lesser sentence. K.S.A. 2016 Supp. 22-3716(b)(3)(B)(iii). And that's true for each
case before a district court.

5

Often, as here, a defendant will be revoked in two or more cases in a single
consolidated hearing. When a district court simultaneously handles revocations and
dispositions in multiple cases, it must be especially careful to delineate the punishment
imposed in each. The district court here simply failed to exercise the required precision to
make a sufficiently clear record establishing the punishment McCroy had to serve.

Ambiguities in criminal sentences cannot be left unclarified, since the defendant's
liberty—a constitutionally protected interest—hangs in the balance. Accordingly, K.S.A.
22-3504(1) provides a mechanism for a district court to eliminate a sentencing ambiguity
on its own or for a party to flag what appears to be an ambiguity. The district court
properly engaged that mechanism here to clarify its vague and ill-defined pronouncement
of punishment from the bench.

Affirmed.

* * *

POWELL, J., dissenting: Because I disagree that the district court's actions were
somehow ambiguous, I must dissent.

This case is a difficult one as it is obvious from the record that the court did not
wish to impose McCroy's 20-plus-year sentence. McCroy is a chronic drug offender who,
while on felony drug probation, committed two serious person felonies. This typically
would have resulted in McCroy's lengthy incarceration without further delay. However,
as part of a plea deal and due in part to the fact that the harm committed as a result of
McCroy's person felonies was less than typical, the district court granted his motion to
depart and placed him on probation along with reinstating probation on his earlier drug
case. But, the court did not further depart and reduce his sentence from the standard 216
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months, perhaps in an effort to "scare McCroy straight" and motivate him to successfully
complete probation and beat his drug addiction.

Unfortunately, McCroy called the court's bluff and once again violated the terms
of his probation. The district judge, after failing to find a suitable and more intense drug
treatment program, decided to revoke McCroy's probation and impose his 34-month
sentence in his drug case—at least, it appears that is what she intended. But it does not
matter what the court intended. See Abasalo v. State, 284 Kan. 299, 310, 160 P.3d 471
(2007) ("[A] sentence is effective once it is announced from the bench, regardless of the
court's intent at the time of pronouncement."). What the district court actually did was to
revoke McCroy's probation in both cases and send him to prison for over 20 years. After
realizing her mistake, the district judge called the parties back into court and modified
McCroy's sentence to reflect that he was only to serve his prison time in the drug case.
Perhaps aware that a district court may not modify a sentence once imposed, the judge
characterized her original action as ambiguous—making the sentence illegal and then
subject to modification. See K.S.A. 22-3504(1) (illegal sentence may be corrected at any
time); State v. Sims, 294 Kan. 821, Syl. ¶ 3, 280 P.3d 780 (2012) (ambiguous sentence is
illegal); State v. McKnight, 292 Kan. 776, 779, 257 P.3d 339 (2011) ("Once a legal
sentence is pronounced from the bench, the trial court does not have jurisdiction to
modify the sentence." [Emphasis added.]).

The necessity for the district court to perform the somersaults it did here is
unfortunate because the district court had the authority to modify McCroy's sentence at
his revocation hearing. See K.S.A. 2016 Supp. 22-3716(b)(3)(B)(iii). Additionally, this
case shows the need for the legislature to give district judges the ability to reconsider the
sentences they impose. This notwithstanding, a fair reading of the record uncovers no
meaningful ambiguity in the district court's action.

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The majority describes the district court's revocation of McCroy's probation and its
imposition of sentence as "confusing" and "exceptionally unsystematic and abbreviated."
Well, nothing in the law required McCroy's disposition to be either systematic or lengthy.
It merely had to be unambiguous. To declare the district court's imposition of McCroy's
sentences as ambiguous, we must be "genuinely uncertain" how to construe the meaning
of the district court's action. See Brumley v. Lee, 265 Kan. 810, 813, 963 P.2d 1224
(1998). I quote the hearing in its entirety:

"THE COURT: Patrick McCroy, 12 CR 5 and 13 CR 592. Mr. McCroy is here
and by Steve Osburn and the State by Assistant Steve Maxwell. We're here—we held
over disposition or I did. [T]here was a stipulation on June 3rd to motions to revoke. I
was given some information by Mr. Osburn about a program that Mr. McCroy is
interested in in Missouri. I reviewed that information. The program is called Teen
Challenge of the Four States. And is there anything else you wish to present today, Mr.
Osburn?

"MR. OSBURN: Your Honor, I think we need to put on the record. I got an e-
mail I believe from you which was an, in a string. It was an attached e-mail from a
gentleman purporting to be the, I believe, the Rice County Attorney and then one from
Mr. Maxwell indicating that Rice County had imposed a sentence and sent Mr. McCroy
to D.O.C. Mr. McCroy has not been to Rice County to be sentenced. He's been sitting
right here in Reno County the whole time. They haven't made any decision in Rice
County yet.

"MR. MAXWELL: Well, that's fairly strange since I forwarded you Mr.
McPherson, the Rice County Attorney's e-mail I think.

"THE COURT: Well—

"MR. OSBURN: I don't know how they can sentence Mr. McCroy with him
sitting here. He has to be present to be sentenced.

"MR. MAXWELL: Judge, I don't know what to tell you.
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"THE COURT: Well, to make that easier I, after reviewing that information, I do
not believe that is a program that is right for Mr. McCroy. I have previously imposed a
180-day sanction on these probation revocation motions which I believe this is the third.

"MR. MAXWELL: Fourth. Third, third.

"THE COURT: Third. Okay. Mr. McCroy, I'm going to order you to serve your
sentences here. I just, I don't think that you have the tools you need to be successful in
that program. It sounded pretty tough actually to me and I also feel like you, you are
more of a danger to the public in the form of the offenses you've been committing. You're
also young. You, like Mr. Pederson, have all the incentive to make a different life, but I
feel like serving your sentence is the right course here. Alright. Thank you.

"THE DEFENDANT: Your Honor, I do I respect you. I think you're a really
good judge and maybe these next 20 years in prison will help me become a better person
but I thank you for the chance.

"THE COURT: I appreciate that. That shows some real maturity and
understanding on your part.

"THE DEFENDANT: Thank you, Your Honor."
I fail to see the ambiguity of what the district court did. The district court
announced both of McCroy's cases, ordered him to serve his sentences, and labeled
McCroy a danger to the public. Moreover, the court's failure to mention whether the
sentences ran concurrently or consecutively does not create ambiguity as they are to run
consecutively by operation of law unless the district court makes specific findings to the
contrary. See K.S.A. 2016 Supp. 21-6606(c). While my colleagues and the district court
may be in doubt as to what happened, it is clear McCroy plainly understood because in
response to the district court's imposition of his sentences, he stated he hoped "these next
20 years in prison will help me become a better person."

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The district court's revocation of McCroy's probation and imposition of his
underlying sentences was not ambiguous; therefore, the district court lacked the
jurisdiction to modify its action. I would reverse the district court and remand with
directions for it to impose McCroy's underlying sentences in both of his cases.