State v. White

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NOT DESIGNATED FOR PUBLICATION

No. 112,062

IN THE COURT OF APPEALS OF THE STATE OF KANSAS


STATE OF KANSAS,
Appellee,

v.

JOHNATHON EARL WHITE,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; WILLIAM P. MAHONEY, judge. Opinion filed September
11, 2015. Affirmed.

Carol Longenecker Schmidt, of Kansas Appellate Defender, for appellant.

Christopher L. Schneider, assistant district attorney, Jerome A. Gorman, district attorney, and
Derek Schmidt, attorney general, for appellee.

Before GREEN, P.J., HILL, J., and TIMOTHY G. LAHEY, District Judge, assigned.

Per Curiam: Under Kansas law, a prior felony conviction triggers the
enhancement of an offender's sentence under the Habitual Criminal Act, not the
offender's prior sentence. Johnathon Earl White admitted that he had been convicted of
burglary and theft in 1981 and burglary in 1983 before he was sentenced in 1987 for
aggravated robbery and three counts of kidnapping. Because of his two prior felony
convictions, we hold the district court correctly sentenced White as a third-time offender.

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White moves to correct his sentence 25 years later.

In 1987, a jury convicted White of one count of aggravated robbery, a Class B
felony in violation of K.S.A. 21-3427 (Ensley 1981), and three counts of kidnapping,
each Class B felonies in violation of K.S.A. 21-3420 (Ensley 1981) in Wyandotte
County. Before sentencing, the district court held a hearing on the State's motion to
invoke the Habitual Criminal Act, K.S.A. 1986 Supp. 21-4504. At that hearing, White
admitted that he had been convicted of felonies in two earlier cases, both in Wyandotte
County. White had been convicted of burglary and theft in case number 81CR1288 and
burglary in 83CR0941. Based on this, the district court found that it would sentence
White under the Habitual Criminal Act as a third-time offender.

If the district court had not sentenced White under the Act, he would have
received an indeterminate sentence—a minimum of 5 to 15 years and a maximum of 20
years to life, for his aggravated robbery conviction and for each of his kidnapping
convictions. See K.S.A. 1986 Supp. 21-4501(b).

In accordance with the Act, the district court sentenced White to a term not less
than 45 years to life imprisonment for his aggravated robbery conviction and for each
kidnapping conviction. Moreover, the district court ordered that the sentence for each
count of White's convictions in 86CR2007 run concurrently with each other but
consecutive to his sentences already imposed in 81CR1288 and 83CR0941.

The court also found that the crimes were committed with a firearm and therefore
K.S.A. 21-4618 (Ensley 1981) and K.S.A. 1986 Supp. 22-3717 applied to White's case.
In practical terms, that meant that White was not eligible for probation and could not
achieve parole until he had served the minimum sentence imposed, less good time
credits.

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In December 2012, White filed a pro se motion to correct an illegal sentence. In
his motion, White alleged that K.S.A. 1986 Supp. 21-4504(b) of the Act did not give the
district court the authority to impose his 45-years-to-life sentence in 86CR2007. When
White filed this motion, he also moved to appoint counsel. The district court appointed
counsel to represent White on his motion.

White's appointed counsel filed an amended motion to correct an illegal sentence.
Counsel argued that the district court erred in sentencing White as a third-time offender
in 86CR2007 because the district court had not sentenced him as a second-time offender
for his second felony conviction in 1983. White maintained that the district court had to
sentence a defendant as a second-time offender under K.S.A. 1986 Supp. 21-4504(a)
before the district court could sentence a defendant as a third-time offender under K.S.A.
1986 Supp. 21-4504(b).

At the hearing on White's motion, he asserted that his sentence as a third-time
offender under the Act was illegal. The district court disagreed and denied White's
motion because his sentence complied with the statutes in effect when he was sentenced.

The sole issue that White raises on appeal is whether the district court erred when
it denied his motion to correct an illegal sentence. White contends that his sentence is
illegal because the district court was required to sentence him as a second-time offender
under the Act before it could sentence him as a third-time offender.

We find no error here.

Whether a sentence is illegal is a question of law over which an appellate court has
unlimited review. State v. Taylor, 299 Kan. 5, 8, 319 P.3d 1256 (2014). Moreover,
interpretation of a sentencing statute is a question of law over which an appellate court
has unlimited review. State v. Phillips, 299 Kan. 479, 494, 325 P.3d 1095 (2014).
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Although a criminal statute should be strictly construed in favor of the accused, this rule
is subordinate to the rule that judicial interpretation of a statute must be reasonable and
sensible. State v. Williams, 299 Kan. 870, 873, 326 P.3d 1070 (2014).

White asserts that punishing an offender as a third-time offender before punishing
as a second-time offender goes against this legislative purpose of the Act, which is
reducing recidivism. White further claims that our Supreme Court actually held that "a
defendant must be subject to a second-time offender sentence before a district court can
impose a third-time offender sentence" in State v. Murray, 200 Kan. 526, 437 P.2d 816
(1968), and State v. Wilson, 230 Kan. 287, 634 P.2d 1078 (1981).

Even though White contends that the Murray and Wilson court held that the
district court must sentence a defendant as a second-time offender before sentencing a
defendant as a third-time offender, this is not the case. In Murray, the district court
sentenced Murray as a third-time offender after it found that two of Murray's prior felony
convictions, which arose from the same act and were prosecuted under the same
information, constituted two separate felony convictions for the purpose of sentencing
under the Act. 200 Kan. at 530. The Murray court vacated Murray's sentence as a third-
time offender, holding: "Where two convictions grow out of the same act and are
prosecuted in the same information, only one of them may be subsequently utilized as a
previous conviction within the contemplation of the habitual criminal statute." 200 Kan.
526, Syl. ¶ 3.

Then, in Wilson, the district court sentenced Wilson as a third-time offender under
the Act even though one of Wilson's previous felony convictions was actually committed
after the commission of the principal offense for which he was being sentenced as a
third-time offender. 230 Kan. at 287. Our Supreme Court adopted this court's opinion in
State v. Wilson, 6 Kan. App. 2d 302, 627 P.2d 1185 (1981), and vacated Wilson's
sentence as a third-time offender. 230 Kan. at 287-88. The Wilson court held that the
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district court could enhance a defendant's sentence only if that defendant was convicted
of the earlier felony before committing the subsequent felony. 230 Kan. at 287-88.

Consequently, neither Murray nor Wilson address whether the district court must
sentence a defendant as a second-time offender under the Act before the district court can
sentence a defendant as a third-time offender. White has misconstrued the Murray and
Wilson decisions to support his argument. Instead, both address what constitutes a prior
felony conviction for the purpose of determining whether a defendant is subject to
sentencing as an habitual offender.

The Supreme Court has considered variations of White's argument that the district
court must sentence an offender as a second-time offender before sentencing as a third-
time offender under the Act. The Supreme Court has consistently rejected his argument,
holding that "it is the conviction of a prior felony which triggers the imposition of the
habitual criminal statute not the punishment adjudged at the time of the prior conviction."
State v. Robertson, 225 Kan. 572, 575, 592 P.2d 460 (1979); see Le Vier v. State, 214
Kan. 287, Syl. ¶ 2, 520 P.2d 1325 (1974); Nelson v. State, 204 Kan. 623, 624, 464 P.2d 7
(1970); Current v. Hudspeth, 173 Kan. 694, Syl. ¶ 1, 250 P.2d 798 (1952).

Thus, the fact that the district court never sentenced White as a second-time
offender before it sentenced him as a third-time offender is without legal consequence. It
must be remembered that the Act could only be invoked by the State filing a motion to
sentence an offender as an habitual criminal. The State was not required to file the motion
in any case, including this one.

For sentencing under the Act, all that matters is a defendant's prior felony
convictions. Consequently, White's sentence as a third-time offender is legal because he
had two prior felony convictions.

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Affirmed.