Opinion
Nos. 105,656 105,657.
2012-06-8
STATE of Kansas, Appellee, v. Robert L. BURTON, Appellant.
Appeal from Harvey District Court; Richard B. Walker, Judge. Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. David E. Yoder, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Harvey District Court; Richard B. Walker, Judge.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. David E. Yoder, county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., PIERRON and LEBEN, JJ.
MEMORANDUM OPINION
LEBEN, J.
In 2004, while a juvenile, Robert Burton committed aggravated criminal sodomy. The district court adjudicated him a juvenile offender and entered a juvenile sentence. But Burton was also subject to an extended-jurisdiction, 190–month adult sentence if he didn't successfully complete the juvenile one.
Before completing the juvenile sentence, Burton was charged in August 2007 with several new offenses; under a plea agreement, he pled no contest to indecent liberties with a child and aggravated sexual battery, and he was convicted as an adult on both charges. In addition, the new convictions triggered imposition of the extended-jurisdiction adult sentence from his 2004 juvenile case.
For the new offenses, the district court sentenced Burton to 136 months in prison on the indecent-liberties conviction and to 136 months in prison on the aggravated-sexual-battery conviction; the court ordered those sentences to be served concurrently, giving a controlling sentence of 136 months for those cases. But the court ordered that the new sentences be served consecutively to the 190–month extended-jurisdiction adult sentence entered as part of Burton's juvenile adjudication.
From prison, Burton filed a pro se motion to correct illegal sentence, claiming that the district court had no authority to make the new sentences consecutive to the earlier one. Although the district court denied his motion, we agree with Burton: Consecutive sentences may be entered only when authorized by statute, In re W.H., 274 Kan. 813, 817, 57 P.3d 1 (2002), and Kansas statutes don't authorize making an adult criminal sentence consecutive to a sentence that was entered in a juvenile adjudication. State v. Sims, 40 Kan.App.2d 119, Syl., 190 P.3d 271 (2008); State v. Crawford, 39 Kan.App.2d 897, 901–02, 185 P.3d 315 (2008); State v. Logan, No. 103,926, 2011 WL 3250572, at *2 (Kan.App.2011) (unpublished opinion), rev. denied 293 Kan. –––– (2012).
Although the State argues in this appeal that Sims and Crawford were wrongly decided, the State has not cited any statute that authorizes making an adult sentence consecutive to a sentence that was entered in a juvenile adjudication. The State also argues that Burton's sentence was the result of a plea agreement. But Kansas law is clear that a defendant can't agree to an illegal sentence. State v. Jones, 293 Kan. 757, 757–58, 268 P.3d 491 (2012); State v. Duncan, 291 Kan. 467, 470–71, 243 P.3d 338 (2010). So, the fact that Burton entered into a plea agreement doesn't make his illegal sentence legal. See State v. Walker, 275 Kan. 46, 50, 60 P.3d 937 (2003).
An illegal sentence is one imposed by a court without jurisdiction; a sentence that doesn't conform to the statutory provision, either in the character or the term of authorized punishment; or a sentence that is ambiguous with respect to the time and manner in which it is to be served. State v. Harsh, 293 Kan. 585, 588, 265 P.3d 1161 (2011). Here, the sentence was illegal because the district court had no jurisdiction to make the new sentences consecutive to the one entered in the juvenile adjudication. Because a court may correct an illegal sentence at any time, K.S.A. 22–3504(1); Harsh, 293 Kan. at 588, we conclude that the district court erred when it denied Burton's motion to correct an illegal sentence.
The sentences entered against Burton on the two new convictions are vacated, and the case is remanded to the district court for resentencing.