State v. Williams

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NOT DESIGNATED FOR PUBLICATION

No. 114,691

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

WILLIE WILLIAMS JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; DAVID J. KAUFMAN, judge. Opinion filed January 20,
2017. Affirmed in part, vacated in part, and remanded with directions.

Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before SCHROEDER, P.J., BUSER, J., and WALKER, S.J.

Per Curiam: Willie Williams, Jr., appeals his sentence in case 14 CR 3059, in
which the district court imposed a 12-month jail term for eight concurrent misdemeanor
counts. The district court ordered the sentences to be served "consecutively to all other
cases, including 12 CR 3116 and 14 CR 3059," but granted probation "after completing
his prison sentence." Williams contends that there were no such existing sentences in
either of those cases and therefore his sentence in 14 CR 3059 may not be run
consecutive to them under State v. Reed, 237 Kan. 685, 703 P.2d 756 (1985). Because we
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find the record reflects both legal and clerical errors in a portion of the district court's
orders, we affirm in part but remand for correction of those patent errors.

FACTS

On November 19, 2014, Williams pled guilty to four counts of misdemeanor
battery against a law enforcement officer and four counts of misdemeanor criminal
damage to property in case 14 CR 3059. The transcript of the hearing held that day
reflected that the district court noted the existence of an agreement for a 12-month
controlling sentence for the eight counts and then very briefly covered Williams' trial
rights and accepted his guilty pleas. At the conclusion of the hearing the court simply
noted: "Counsel, the document that relates to this case, the 14 CR 3059 case, I approve
your all's agreement in whole and have signed off on it, and that's all that's really required
on the record in the misdemeanor case." Though no formal sentencing proceeding was
conducted, a journal entry of plea and sentence was prepared, signed by the judge,
prosecutor, defense attorney, and Williams, and then filed, all on the same day as the
hearing. This journal entry contained the language Williams complains of in this appeal,
reciting that "[t]his case to run consecutively to all other cases, including 12 CR 3116 and
14CR 3059."

Also on November 19, 2014, Williams pled guilty in case 14 CR 1938 to
possession of methamphetamine. At the January 14, 2015, sentencing hearing in that
case, Williams was sentenced to 20 months in prison, which the court ran consecutive to
"any priors," including 12 CR 3116. Williams was sentenced in case 12 CR 3116 on June
23, 2013, to a 24-month' probation with an underlying 25-month prison term. His
probation in case 12 CR 3116 was subsequently revoked at the January 14, 2015, hearing,
and the court imposed Williams' underlying prison term. The court noted that 14 CR
3059 was not before the court at that hearing, as sentencing had already occurred in that
case.
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Williams subsequently filed an appeal of his misdemeanor sentencing orders in an
untimely fashion. After a remand from this court for a hearing pursuant to State v. Ortiz,
230 Kan. 733, 640 P.2d 1255 (1982), the district court determined that the applicable
exceptions existed and Williams was permitted to file his notice of appeal out of time.

ANALYSIS

Williams argues on appeal that the district court erred in running his sentence in
14 CR 3059 consecutive to two other cases in which he contends he had not yet been
sentenced. A district court generally has discretion to impose concurrent or consecutive
sentences. State v. Horn, 302 Kan. 255, 256-57, 352 P.3d 549 (2015). This court may
reverse only if judicial discretion has been abused. A district court abuses its discretion if
its action is (1) arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would
have taken the view adopted by the trial court; (2) is based on an error of law; or (3) is
based on an error of fact, i.e., if substantial competent evidence does not support a factual
finding on which a prerequisite conclusion of law or the exercise of discretion is based.
State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011). The burden of proof is on the
party alleging that the court abused its discretion. State v. Wells, 289 Kan. 1219, 1227,
221 P.3d 561 (2009).

Williams relies on Reed. In that case, our Supreme Court held:

"[I]n order for a trial court to impose a consecutive sentence, there must be a prior
sentence in existence at the time of the subsequent sentencing. A trial court has no
authority to direct a sentence to run consecutively to a nonexisting sentence which might
thereafter be imposed in a pending case." 237 Kan. at 690.

Williams argues that the district court improperly ordered his sentence in 14 CR
3059 to run consecutive to two cases in which there was no prior sentence of
incarceration imposed. The two cases will be discussed in turn.
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In case 12 CR 3116, Williams was sentenced on June 23, 2013, to a 24-month'
probation with an underlying 25-month prison term. Williams contends that because there
was no sentence of incarceration at the time of his sentencing, Reed applies. However, a
probation sentence includes an underlying sentence that the defendant will serve if the
court revokes probation. See White v. State, No. 89,208, 2003 WL 22005909, at *2 (Kan.
App. 2003) (unpublished opinion) ("[I]f a defendant is sentenced for a different crime
while on probation, the court can impose consecutive sentences because the defendant
has been sentenced in the underlying case."). Therefore, the district court was not in
violation of the rule in Reed when it ordered his sentence in case 14 CR 3059 to run
consecutive to 12 CR 3116 on November 19, 2014.

The second case is less clear. The journal entry directed the sentence in 14 CR
3059 to be served consecutive to 12 CR 3116 and 14 CR 3059—i.e., consecutive to itself.
The State contends this was simply a typographical error: The court intended for the
sentence to be run consecutive to 14 CR 1938, a case to which Williams pled guilty on
the same day as 14 CR 3059. Williams does not address whether the journal entry was in
error. Rather, Williams consistently refers to the second case as "14 CR 2059" throughout
his brief without any explanation or contention that he is referring to another case in
which Williams was charged. The record on appeal in this case does not include any
information regarding case 14 CR 2059.

If, as the State contends, the district court intended for the second case to be 14 CR
1938, the State admits that Williams had not yet been sentenced in that case at the time of
Williams' sentencing in 14 CR 3059. The journal entry for case 14 CR 3059 notes that
sentencing was held November 19, 2014; sentencing in case 14 CR 1938 was at a later
date—January 14, 2015. Thus, under Reed, the district court erred if it intended to
sentence Williams in 14 CR 3059 to serve his sentence consecutive with the sentence in
14 CR 1938. However, we note that at the sentencing hearing for case 14 CR 1938, the
district court ordered that the sentence in that case run consecutive to all other prior cases.
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At that time, the sentences in cases 12 CR 3116 and 14 CR 3059 were in existence, and
so it would not have violated Reed to order the cases to run consecutively at the later
sentencing. It therefore follows that Williams may have won the battle and made his
point in this case only to have it mooted out by action of the sentencing court in 14 CR
1938.

Based upon our above findings, we affirm the portion of the district court's order
running this case consecutive to case 12 CR 3116 but vacate that portion of the order
running this case consecutive to itself as an obvious nullity. The case is further remanded
to the district court with directions to prepare and file a corrected journal entry reflecting
these orders.

Affirmed in part, vacated in part, and remanded with directions.