State v. McNelly

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NOT DESIGNATED FOR PUBLICATION

No. 119,574


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

KENNETH DAVID MCNELLY,
Appellant.


MEMORANDUM OPINION


Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed November 27, 2019.
Affirmed.

Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant, and Kenneth David
McNelly, appellant pro se.

Anna M. Jumpponen, assistant county attorney, Ellen Mitchell, county attorney, and Derek
Schmidt, attorney general, for appellee.

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

PER CURIAM: Kenneth David McNelly appeals the denial of his motion to correct
an illegal sentence raising four new arguments concerning his resentencing hearing. We
affirm.

A jury found McNelly guilty of eight counts of rape, one count of aggravated
criminal sodomy, and one count of aggravated indecent liberties with a child. The crimes
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were committed between January 1, 1997, and August 1, 1998. Prior to sentencing, the
State moved for an upward durational departure, but the court denied the motion. The
court then sentenced McNelly to consecutive prison sentences of 194 months for each
rape count, 146 months for aggravated criminal sodomy, and 49 months for aggravated
indecent liberties with a child.

Because McNelly takes issue with how the court issued the sentences, the full text
is here:

"THE COURT: . . . on Count 1, primary offense of rape, felony against a person,
Severity Level of 1, a Criminal History Score of I, the court sentences you to 194 months.
On the additional count of rape, the court sentences you to 194 months. On the additional
count of rape, the court sentences you to 194 months. On the additional count of rape, the
court sentences you to 194 months. On the additional count of rape, the court sentences
you to 194 months. On the additional count of rape, the court sentences you to 194
months. On the additional count of rape, the court sentences you to 194 months. On the
additional count of rape, the court sentences you to 194 months. On the additional count
of aggravated criminal sodomy, a felony against a person, a Severity Level of 2, a
Criminal History Score of [I], the court sentences you to 146 months. And on the
additional count of aggravated indecent liberties with a child, the court—which is a
felony against a person, Severity Level of 3, a Criminal History Score of I, the court
sentences you to 49 months.
". . . [A]ll of those counts will run consecutively, giving you—the way I read it, .
. . having chose[n] the base sentence of 194 months, the maximum sentence would be for
all of that 388 months. Am I wrong in my calculations there? Be somewhere between 388
to 412 months. It cannot [exceed] that, regardless of how much is done.
"[PROSECUTOR]: That is correct, Judge. It cannot [exceed] 412 months, but the
court could impose consecutive sentences up to that amount without—
"THE COURT: Up to that amount. The court so imposes then consecutive
sentences that will not [exceed] 412 months. [E]ffectively giving you, Mr. McNelly, a
sentence of—34 years and three months.
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". . . Your post-release supervision, as already previously mentioned, will be the
maximum allowed for a sexually motivated crime, which is five years pursuant to K.S.A.
22-3717(d)(1)(C)(i) pursuant to the K.S.A. 1993 supplement." (Emphases added.)

The sentence of 194 months was the standard presumptive sentence for rape. The
court's journal entry reiterated that all counts were consecutive, McNelly's total prison
sentence was 412 months, and his postrelease supervision term was 60 months.

Shortly thereafter, the Department of Corrections sent a letter to the sentencing
court with copies to the parties inquiring whether the court had intended to sentence
McNelly to 412 months given that K.S.A. 1996 Supp. 21-4720(b)(4) capped an offender's
total controlling sentence at twice his or her base sentence.

In 2002, McNelly's convictions were affirmed on appeal and became final. State v.
McNelly, No. 84,552, unpublished opinion filed January 11, 2002 (Kan. App.).

Without counsel, McNelly moved to correct an illegal sentence contending, among
other things, that his controlling sentence did not comply with K.S.A. 1996 Supp. 21-
4720(b)(4) because it exceeded twice his base sentence. The court denied McNelly's
motion, ruling that the motion raised trial errors that should have been brought on direct
appeal. On appeal, this court issued an order reversing the district court. It ruled that the
district court "sentenced McNelly to a base sentence of 194 months and a controlling
sentence of 412 months." But because K.S.A. 1996 Supp. 21-4720(b)(4) limited an
offender's controlling sentence to no more than twice the base sentence, this court vacated
McNelly's sentence and remanded the case to the district court "with directions to
resentence him in accordance with K.S.A. [1996] Supp. 21-4720(b)(4)."

In 2008, the resentencing court recognized that the case was "only before the
Court this morning because the Court of Appeals sent it back to the Court for
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resentencing because at the time of your sentencing you were sentenced to a term greater
than twice the base sentence." The court sentenced McNelly as before, except it capped
his total sentence at 388 months instead of 412 months. The court also ordered that
McNelly receive credit against his sentence for all the time he had already served in
custody.

McNelly appealed the resentencing contending the district court erred by not
addressing the trial errors he raised during allocution at resentencing. This court found no
error and affirmed. State v. McNelly, No. 101,221, 2010 WL 1253624, at *2-3 (Kan. App.
2010) (unpublished opinion).

In 2015, McNelly filed another motion to correct an illegal sentence. The district
court denied the motion because it actually raised issues that should have been brought on
direct appeal. This court issued an order affirming the district court.

In 2017, McNelly, through counsel, filed the motion to correct an illegal sentence
that is the subject of this appeal. The district court held a hearing on the motion. At the
hearing, McNelly argued that the original sentencing court failed to designate a base
sentence upon which to double and the resentencing court could not correct the error. The
court ruled that McNelly's sentence was not an illegal sentence and denied the motion.
The court found "that the mere fact the Court did not state on the record that Count 1 was
the primary or base offense does not constitute an illegal sentence." McNelly moved to
reconsider, which the court denied.

Interpretation of a sentencing statute is a question of law, and the standard of
review is unlimited. State v. Warren, 307 Kan. 609, 612, 412 P.3d 993 (2018). Moreover,
whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a question of law
over which the appellate court has unlimited review. State v. Lee, 304 Kan. 416, 417, 372
P.3d 415 (2016). A sentence is illegal when: "(1) it is imposed by a court without
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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." State v. Hayes, 307 Kan. 537, 538, 411 P.3d 1225 (2018). A
court may correct an illegal sentence at any time while the defendant is serving the
sentence. K.S.A. 22-3504(a), as amended by L. 2019, ch. 59, § 15. A defendant may
challenge a sentence even for the first time on appeal. See State v. Fisher, 304 Kan. 242,
264, 373 P.3d 781 (2016).

Through counsel, McNelly raises a new argument on appeal. He contends that the
original sentencing court "breezed through the 'additional' rape counts—without
designating count for those offenses or sentences" which did not comply with K.S.A.
1996 Supp. 21-4720(b). In essence, he complains the court referred to the rape charges in
counts 2-8 as "additional" counts instead of count 2, count 3, count 4, etc. He contends
the resentencing court repaired the original sentence by designating the sentence for each
individual rape count, but that was beyond the scope of this court's mandate. He contends
the resentencing court made presumptions about the intent of the original sentencing
court. He wants his total sentence limited to 194 months because it was "the only
sentence set out by the original sentencing court by its individual count."

The State correctly responds that the "resentencing court's failure to mimic the
informality of the original sentencing court does not amount to an illegal sentence."
There was no ambiguity in the original sentence imposed.

McNelly does not point to any language in K.S.A. 1996 Supp. 21-4720(b) that
prohibits the approach used by the original sentencing court with regard to the seven
additional counts of rape. The court stated explicitly that "Count 1"—rape—
was the "primary" crime and that the "base sentence" was 194 months, in compliance
with K.S.A. 1996 Supp. 21-4720(b)(2) ("The sentencing judge must establish a base
sentence for the primary crime."). The court stated that all of the counts of rape were
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severity level one person felonies with a sentencing range of 184 to 206 months. The
court imposed the same sentence of 194 months for each additional count of rape. There
was no ambiguity in what sentence was imposed for each separate count. The court
explicitly stated that "all of those counts will run consecutively" in compliance with
K.S.A. 1996 Supp. 21-4720(b) ("The sentencing judge shall state on the record if the
sentence is to be served concurrently or consecutively."). The resentencing court did not
have to make any presumptions about the intent of the sentencing court.

McNelly also makes three pro se arguments on appeal. His first argument assumes
that the original sentencing court granted the State's request for a 218-month departure
over the 194-month presumptive sentence to arrive at the 412-month sentence. He argues
the resentencing court was without jurisdiction to alter the base presumptive sentence
through a departure, modification, or otherwise.

But the original sentencing court did not grant a departure to arrive at the 412-
month sentence. The court specifically denied the State's request for an upward departure.
Rather, the court sentenced McNelly to consecutive sentences on 10 counts that would
have added up to 1,747 months' imprisonment. Under K.S.A. 1996 Supp. 21-4720(b)(4),
the court was required to cap McNelly's total sentence at twice his base sentence. Here,
that was 388 months rather than the 412 months imposed. The resentencing court did not
alter the base presumptive sentence—the resentencing court imposed the same 194-
month presumptive sentence for the base sentence—the court only corrected the original
sentencing court's mathematical error in arriving at the total sentence.

McNelly next argues that both sentencing courts imposed a 60-month postrelease
supervision term without stating substantial and compelling reasons on the record for a
departure as required by K.S.A. 1996 Supp. 21-4716(a).

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The original sentencing court recognized that McNelly's crimes were subject to a
36-month postrelease supervision term but the court decided to "exercise its option and
order a post-release supervision [term] according to statute, since it's a sexually motivated
crime, of 60 months." The resentencing court ordered that McNelly be subject to
"previous orders of the sentence, which did include post-release supervision in the
amount of 60 months."

The statute McNelly cites—K.S.A. 1996 Supp. 21-4716(a)—does not support his
argument because it does not mention postrelease supervision. But he is correct that the
district court imposed a departure to arrive at a 60-month postrelease supervision term
under K.S.A. 1996 Supp. 22-3717(d)(1). The statute permits a court to impose a longer
postrelease supervision period:

"(C)(i) The sentencing judge shall impose the postrelease supervision period [of
36 months], unless the judge finds substantial and compelling reasons to impose a
departure based upon a finding that the current crime of conviction was sexually violent
or sexually motivated. In that event, departure may be imposed to extend the postrelease
supervision to a period of up to 60 months.
"(ii) If the sentencing judge departs from the presumptive postrelease supervision
period, the judge shall state on the record at the time of sentencing the substantial and
compelling reasons for the departure. Departures in this section are subject to appeal
pursuant to K.S.A. 21-4721 and amendments thereto."

Under that statute, if the court found the crime was sexually violent or sexually
motivated, no other aggravating factors needed to be cited or found by the district court to
impose a departure sentence of up to 60 months' postrelease supervision. State v.
Anthony, 273 Kan. 726, 729, 45 P.3d 852 (2002); State v. Atkinson, 21 Kan. App. 2d 276,
Syl. ¶ 3, 898 P.2d 1179 (1995).

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Here, the sentencing court made the finding that McNelly's crime was sexually
motivated. The court did not need to make additional findings.

McNelly finally argues the journal entry only granted him 123 days of jail credit
from 1999 to 2008 which shorted him 4 months' credit.

The journal entry granted McNelly "123 DAYS JAIL TIME CREDIT" and "ALL
JAIL TIME CREDIT FROM 12-6-99 TO 4-7-08 TO [BE] AWARDED BY THE
DEPARTMENT OF CORRECTIONS." He was awarded 123 days of jail time credit at
his original sentencing. His original sentencing date was December 6, 1999. His
resentencing date was April 7, 2008.

It is unclear what four-month period McNelly believes is missing. He has not
shown any error in the calculation of his jail credit. Moreover, a claim that the district
court has awarded an insufficient amount of jail time credit does not equate to an illegal
sentence. State v. Lofton, 272 Kan. 216, 217, 32 P.3d 711 (2001).

In sum, McNelly's arguments are without merit. The resentencing court followed
this court's mandate to correct his original sentence to comply with K.S.A. 1996 Supp.
21-4720(b)(4).

Affirmed.