Opinion
No. 109,502.
2014-11-14
STATE of Kansas, Appellee, v. Michael AGEE–BEY, Appellant.
Appeal from Wyandotte District Court; William P. Mahoney, Judge.Joanna Labastida, of Kansas Appellate Defender Office, was on the brief for appellant.Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
Appeal from Wyandotte District Court; William P. Mahoney, Judge.
Joanna Labastida, of Kansas Appellate Defender Office, was on the brief for appellant. Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
MEMORANDUM OPINION
PER CURIAM.
Michael Agee–Bey appeals from the district court's summary denial of his pro se motion to correct an illegal sentence. He argues that his sentences for felony murder and aggravated robbery did not conform to the statutory provisions in either the character or the term of authorized punishment after the journal entry was amended to reflect that he aided and abetted in the commission of the felony murder. He further contends that his presence was required when the journal entry was amended to include his aiding and abetting status.
Because a life sentence was imposed for the felony-murder conviction, our jurisdiction is pursuant to K.S.A.2013 Supp. 22–3601(b)(3). See State v. Pennington, 288 Kan. 599, 205 P.3d 741 (2009) (jurisdiction over appeal of motion to correct illegal sentence lies with court that had jurisdiction to hear original appeal). The order denying motion is affirmed, and the case is remanded with directions.
FACTUAL AND PROCEDURAL BACKGROUND
On August 20, 1981, Michael Agee–Bey, then known as Michael Agee, was convicted by jury verdict of felony murder and aggravated robbery committed on December 9, 1980. He received a life sentence for felony murder, a class A felony, and a concurrent 5– to 20–years sentence for aggravated robbery, a class B felony. His convictions were affirmed on direct appeal in State v. Agee, No. 53,772, unpublished Supreme Court opinion filed July 16, 1982.
In 1985, Agee–Bey filed a pro se motion to correct his sentence along with a motion for amendment of the journal entry, claiming the journal entry failed to include the language that he was an aider and abettor under K.S.A. 21–3205 (1981 Ensley). The State objected to Agee–Bey's request for an order amending the journal entry, arguingeven though Agee–Bey may not have pulled the trigger-the evidence at trial showed that he planned the robbery, was armed with a weapon during the robbery, gave the codefendant a weapon for the robbery, and disposed of the victim's body. The State concluded because Agee–Bey was shown to be the prime mover and mastermind of the underlying felony that he should be considered as a principal in the homicide. The district court rejected these arguments and entered an order nunc pro tunc, amending the journal entry to indicate that Agee–Bey was sentenced as an aider and abettor pursuant to K.S.A.1980 Supp. 21–4620(a)(2)(C). Agee–Bey received no additional relief on his motions.
In 2011, Agee–Bey filed a pro se motion to correct an illegal sentence. Agee–Bey argued he should be sentenced as a conspirator since he was an aider and abettor to the crime and his codefendant received a less harsh sentence. The district court summarily denied his motion. The decision was not appealed.
In 2012, Agee–Bey filed another motion to correct an illegal sentence pursuant to K.S.A. 22–3504. Again, Agee–Bey's motion stemmed from the district court's order amending his journal entry to indicate that he was sentenced for aiding and abetting another to commit the crimes. Agee–Bey set forth two arguments as to why his sentence was not legal: (1) The order nunc pro tunc correcting his sentence does not conform to K.S.A.1980 Supp. 21–4501(f) in the character and term of punishment authorized, and (2) the order nunc pro tunc correcting the original sentence is void because it was not made in open court in his presence. In a written opinion, the district court summarily denied his motion, and Agee–Bey appeals.
STANDARD OF REVIEW
An appellate court applies a de novo standard of review when the district court summarily denies a motion to correct an illegal sentence because it has the same access to the motion, records, and files as the district court. The appellate court determines if these documents conclusively establish that the movant is entitled to no relief. State v. Robertson, 298 Kan. 342, 343, 312 P.3d 361 (2013).
ANALYSIS
Four years after Agee–Bey's convictions and sentences for felony murder and aggravated robbery had been journalized, he successfully moved to have the journal entry amended to reflect that he was convicted and sentenced for aiding and abetting another to commit the crime of felony murder. The entirety of Agee–Bey's argument to correct his sentences flows from this amendment to the journal entry.
Agee–Bey argues that because the journal entry was amended to indicate he was convicted by reason of his aiding and abetting another to commit a crime, his sentences do not conform to the character and term of punishment authorized by K.S.A.1980 Supp. 21–4501(f). He further argues that he needed to be present when the journal entry was amended. As discussed below, these arguments do not need to be addressed because the journal entry should not have been amended in the first instance, and without the amendment to the journal entry, Agee–Bey has no basis for his arguments.
In granting Agee–Bey's motion to amend the journal entry, the district court relied on K.S.A.1980 Supp. 21–4620(a)(2)(C), which provides in relevant part:
“(a) If the defendant is to be sentenced to the custody of the secretary of corrections, the court may prepare a judgment form which shall be signed by the court and filed with the clerk. If prepared, the judgment form shall reflect the conviction, the sentence and the commitment, and shall contain the following:
“(2) The sentence imposed including:
“(C) if applicable, a statement that this defendant has been convicted of a class A, B or C felony by reason of aiding, abetting, advising, or counseling another to commit a crime, or by reason of the principle provided for in subsection (2) of K.S.A. 21–3205 and amendments thereto.” (Emphasis added.)
However, K.S.A.1980 Supp. 21–4620(a)(2)(C), along with its successor K.S.A.2013 Supp. 21–6711(a)(2)(C), does not apply to a person who has been convicted of and sentenced for felony murder. “In a felony-murder case, evidence of who the triggerman [was] is irrelevant and all participants are principals.” State v. Thomas, 239 Kan. 457, 462, 720 P.2d 1059 (1986). “Under the felony-murder rule, an armed principal in an aggravated robbery cannot be an aider and abettor.” 239 Kan. at 462. Consequently, “a participant in a felony murder cannot be an aider or abettor and should not be identified as a[n] aider or abettor on a judgment form .” State v. Littlejohn, 260 Kan. 821, 822, 925 P.2d 839 (1996).
Agee–Bey was convicted of felony murder stemming from his participation in an aggravated robbery where the victim was killed. Under our felony-murder statute if during the commission of a felony that is inherently dangerous to human life a person is killed as a direct result of the crime, the criminal liability is extended to all of those who participated in committing the underlying felony, not just to the principal actor. See K.S.A.2013 Supp. 21–5402(a)(2); State v. Gleason, 277Kan. 624, 637, 88 P.3d 218 (2004). For these reasons, amending the journal entry to state Agee–Bey was an aider and abettor to felony murder was a misapplication of the law. Accordingly, this erroneous journal entry needs to be corrected on remand to the district court.
The district court's denial of the motion to correct an illegal sentence is affirmed. The case is remanded with directions to the district court to issue an order correcting the journal entry to reflect that the felony-murder conviction was not a conviction by reason of aiding and abetting under K.S.A.1980 Supp. 21–4620(a)(2)(C).