Opinion
No. 106,364.
2012-07-20
STATE of Kansas, Appellant, v. Lazaro HERNANDEZ–ORONA, Appellee.
Appeal from Barton District Court; Ron Svaty, Judge. Douglas A. Matthews, county attorney, and Derek Schmidt, attorney general, for appellant. Robert A. Anderson, Sr., of Robert A. Anderson Sr. Law Office, of Ellinwood, for appellee.
Appeal from Barton District Court; Ron Svaty, Judge.
Douglas A. Matthews, county attorney, and Derek Schmidt, attorney general, for appellant. Robert A. Anderson, Sr., of Robert A. Anderson Sr. Law Office, of Ellinwood, for appellee.
Before GREENE, C.J., MALONE and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
The State appeals the district court's determination of criminal history and imposition of sentence on Lazaro Hernandez–Orona following his guilty pleas to one count of possession of cocaine and one count of aggravated battery. The State argues that sentencing was completed in September 2006, before Hernandez–Orona absconded, and therefore the district court lacked jurisdiction to amend his criminal history score and modify his sentence in May 2011. For the reasons set forth herein, we affirm the district court's judgment.
The underlying facts surrounding Hernandez–Orona's convictions are not relevant to this appeal. On May 11, 2006, Hernandez–Orona pled guilty to possession of cocaine, a severity level 4 drug felony, and aggravated battery, a severity level 7 nondrug felony. The district court ordered that a presentence investigation (PSI) report be prepared and scheduled sentencing for a later date. The PSI report indicated that Hernandez–Orona's criminal history score was “C” based on one nonperson felony and three person misdemeanors that were converted into one person felony for criminal history purposes. Hernandez–Orona filed an objection to the PSI report, arguing that one of the person misdemeanors used for the conversion was an uncounseled municipal court conviction for which he had served time in jail, and therefore it could not be used to enhance his criminal history score. Following Hernandez–Orona's objection to the PSI report, an amended PSI report was filed, but ultimately Hernandez–Orona's criminal history score remained “C” because a different person misdemeanor was used for the conversion. Before sentencing, Hernandez–Orona filed a motion for a downward dispositional departure, noting that he was eligible under K.S.A. 21–4729 for consideration of a nonprison drug treatment sanction.
On September 6, 2006, the district court held a sentencing hearing at which Hernandez–Orona was personally present. When the district court asked if there were any challenges to the criminal history contained in the amended PSI report, Hernandez–Orona's counsel stated: “No, Your Honor. I think we've managed to get all of it corrected that was in error.” The parties then presented their arguments on the departure motion. After hearing arguments of counsel, the district court pronounced the sentence:
“Okay. I hereby establish Count 1, the conviction for possession of cocaine, as the base sentence. For the offense of possession of cocaine, a Severity Level 4 drug felony, on which you have a criminal history score of C, thus placing you in a grid box allowing a sentence of between 28 and 32 months in the custody of the Secretary of Corrections, I sentence you to 30 months in the custody of the Secretary of Corrections. On this sentence, you may earn up to 15% good time credit, and it evidently says you wouldn't be subject to any postrelease supervision.
“I am not going to make the finding that the safety of the members of the public will not be jeopardized by placement in a drug abuse treatment program. I am bothered by your statement that you had good reasons for the crimes you committed....
....
“For the crime of aggravated battery, 1 sentence you—which is a Severity Level 7 with a criminal history score of I, I sentence you to 12 months in the custody of the Secretary of Corrections. I would direct that these sentences be served concurrently. For that crime, once you are released from the custody of the Secretary of Corrections on the severity—on the first crime, you will have a postrelease supervision time of 12 months. I will not impose any kind of a fine.”
The district court did not expressly rule on Hernandez–Orona's departure motion. After the district court pronounced the sentence, the State indicated that it believed that the district court had “to consider ... whether or not [Hernandez–Orona] is eligible for enrollment and participation at the Labette Conservation Camp, prior to sending him to DOC.” The district court responded:
“Well, I would like to send him to be evaluated by Labette. They might see something that I didn't see. He had made arguments to me today that they might, and they're much more professional than I am, and Labette might be a good place for him to go, so I am going to recommend that he be evaluated for Labette as part of the— as a part of the sentence.” (Emphasis added.)
At that point, the prosecutor asked the district court to remand Hernandez–Orona to the custody of the sheriff pending completion of the assessment for Labette. The prosecutor suggested that once the Labette Correctional Conservational Camp (Labette) assessment was completed and the parties had the results, “we can reconvene and conclude these proceedings.” The district court denied the State's request to remand Hernandez–Orona to the custody of the sheriff, and the district court extended Hernandez–Orona's appearance bond until the next hearing. The district court advised Hernandez–Orona that he had 10 days in which to appeal his sentence. The district court completed the hearing by directing Hernandez–Orona to go to community corrections for an assessment on his eligibility for placement at Labette.
On November 15, 2006, the district court held another hearing to address the results of the Labette assessment. Hernandez–Orona was not personally present at this hearing. The district court was advised that Hernandez–Orona was found to be ineligible for Labette. Hernandez–Orona's counsel explained that she had tried but failed to contact him several times since the previous hearing and that he had been given proper notice of the present hearing at his last known address. The State and Hernandez–Orona's counsel both believed that because Hernandez–Orona had voluntarily absented himself, the hearing could proceed without him. The district court then confirmed the previously announced sentence and issued a bench warrant:
“I will impose the sentence I think that was entered on September 6, 2006. I think we have already entered the sentences. As both counsel have stated, we have just been waiting on the Labette situation.... Include in the journal entry that the Labette assessment was done and denied, and I'll order that the bench warrant will be issued for him with no bond.”
The journal entry of judgment that was subsequently filed indicated that Hernandez–Orona's sentencing dates were September 6, 2006, and November 15, 2006. Some time later, in mid–2010, it was discovered that Hernandez–Orona was in custody in Colorado, serving a sentence imposed by that jurisdiction. On or about August 19, 2010, Hernandez–Orona was extradited back to Kansas. Hernandez–Orona retained new counsel and filed an objection to the amended PSI report. In the objection, Hernandez–Orona argued that several of the person misdemeanors used for the conversion to one person felony must be stricken from his criminal history because the State had failed to prove that he was either represented by counsel or had waived counsel on those misdemeanors. Therefore, Hernandez–Orona argued that his criminal history score should be “G” (based on one nonperson felony) rather than “C.” The State filed a response and indicated that it had met its burden of proof on at least one of the person misdemeanors and that Hernandez–Orona had not specifically objected to the others, and that therefore his criminal history score was properly classified as “C.”
On March 4, 2011, the district court held a hearing on the objection to criminal history. At the hearing, the State characterized the district court's actions at the September 2006 hearing as denying Hernandez–Orona's departure motion and imposing sentence. In contrast, Hernandez–Orona argued that the district court never completed sentencing because it continued the matter to hear additional evidence on the departure motion and placement at Labette. Without resolving the question of whether sentencing had already been completed, the district court continued the hearing to allow the parties to exchange and review information regarding the validity of Hernandez–Orona's prior person misdemeanors for criminal history purposes.
The final hearing was held on May 31, 2011. The State argued that sentencing had been completed in 2006 and therefore the district court lacked jurisdiction to modify the sentence. Hernandez–Orona argued that sentencing was not completed at the September 2006 hearing and the district court erred when it completed the sentencing in November 2006 without Hernandez–Orona being present. The district court ultimately determined that it had erred when it completed the sentence during the November 2006 hearing at which Hernandez–Orona was not personally present. Because it had determined that sentencing had not been validly completed in 2006, the district court proceeded to sentence Hernandez–Orona. The district court found that the State had failed to meet its burden of proof on Hernandez–Orona's criminal history, sustained Hernandez–Orona's objection, and determined that his criminal history score was properly classified as “G.” Based on the new criminal history score, the district court sentenced Hernandez–Orona to probation with underlying terms of 15 months' imprisonment for possession of cocaine and 12 months' imprisonment for aggravated battery, for a controlling 27–month sentence. The State timely appealed.
As a preliminary matter, Hernandez–Orona contends that this court lacks jurisdiction to hear the State's appeal. Hernandez–Orona argues that the State failed to properly reserve a question under K.S.A. 22–3602(b)(3) and thus cannot now appeal under that statutory provision. The State contends that it is not attempting to bring its appeal as a question reserved under K.S.A. 22–3602(b)(3). Rather, the State argues that this court has jurisdiction to hear the appeal under K.S.A. 21–4721(e)(2), which allows this court to consider any claim that the sentencing court erred in including or excluding a prior conviction for criminal history purposes.
Whether jurisdiction exists is a question of law over which an appellate court's scope of review is unlimited. State v. Ellmaker, 289 Kan. 1132, 1147, 221 P.3d 1105 (2009), cert denied130 S.Ct. 3410 (2010). The right to appeal is entirely statutory and is not contained in the United States or Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statutes. State v. Roberts, 293 Kan. 29, 33, 259 P.3d 691 (2001).
As the State correctly notes, this court may hear an appeal under K.S.A. 21–4721(e)(2) regardless of whether it is brought by the defendant or by the State. See State v. Hodgden, 29 Kan.App.2d 36, 37–39, 25 P.3d 138,rev. denied 271 Kan. 1040 (2001). Here, the notice of appeal indicates that the State “appeals from the judgment of the sentencing court sustaining the defendant's objection to the reported criminal history of the defendant in that the court erred in excluding recognition of prior convictions for criminal history scoring purposes.” Thus, to the extent that the State's appeal argues that the district court erroneously excluded several prior convictions from Hemandez–Orona's criminal history, this court has jurisdiction to review the State's claim.
The State's brief also argues that the district court lacked jurisdiction to amend Hernandez–Orona's criminal history score and modify his sentence in May 2011. The State argues that Hernandez–Orona's sentencing was completed in September 2006 and the sentence that was imposed in May 2011 constituted an illegal sentence. This court has jurisdiction to review the State's claim of an illegal sentence. See State v. McKnight, 292 Kan. 776, 779, 257 P.3d 339 (2011); State v. McCarley, 287 Kan. 167, 176, 195 P.3d 230 (2008). This court's statutory authority to review such a claim derives from K.S.A. 60–2101(a) (Court of Appeals has jurisdiction to correct, modify, vacate, or reverse any act, order, or judgment of the district court in order to assure that it is just, legal, and free of abuse) and K.S.A. 22–3504(1) (illegal sentence may be corrected at any time). See McCarley, 287 Kan. at 173. Therefore, this court has jurisdiction to review the State's claim that the district court lacked jurisdiction to amend Hernandez–Orona's criminal history score and modify his sentence.
Turning to the merits of the State's appeal, the State argues that the district court lacked jurisdiction to amend Hernandez–Orona's criminal history and impose sentence on him in May 2011, because sentencing had already been completed in September 2006 before he absconded. The State contends that because sentencing had already been completed and Labette was no longer viable as a placement option due to its closure in 2009, Hernandez–Orona should have immediately been remanded to the custody of the Department of Corrections upon his extradition back to Kansas.
Hernandez–Orona argues that sentencing was not completed in September 2006 and the district court's purported confirmation of the sentence during the November 2006 hearing was void because Hernandez–Orona was not personally present. Because the sentencing was not validly completed in 2006, Hernandez–Orona contends that the district court still had jurisdiction to impose sentence in May 2011. Hernandez–Orona further argues that the district court correctly excluded the challenged prior convictions from his criminal history when it imposed sentence in May 2011.
As previously stated, whether jurisdiction exists is a question of law over which an appellate court's scope of review is unlimited. Ellmaker, 289 Kan. at 1147. To the extent that resolution of this issue requires interpretation of the Kansas sentencing guidelines, review is also unlimited. State v. Davis, 275 Kan. 107, 124, 61 P.3d 701 (2003).
Once a legal sentence has been imposed, the sentencing court loses jurisdiction to modify that sentence except to correct arithmetic or clerical errors. State v. Ballard, 289 Kan. 1000, 1010, 218 P.3d 432 (2009). Thus, the first question this court must consider is whether sentencing was completed at the September 2006 hearing, as the State contends. If so, then the district court had no jurisdiction to modify Hernandez–Orona's sentence in May 2011, after Hernandez–Orona was returned to Kansas.
It is well-established that a criminal sentence is effective when pronounced from the bench. Abasolo v. State, 284 Kan. 299, 304, 160 P.3d 471 (2007). In presumptive imprisonment cases—as was this case at the time of the September 2006 hearing—the sentencing court is required to pronounce the complete sentence at the hearing, which includes the prison sentence, the maximum potential good time reduction, and any period of postrelease supervision. K.S.A. 21–4704(e)(2).
The transcript of the September 2006 sentencing hearing shows that the district court complied with these requirements. But after pronouncing the sentence, the district court entertained the question of whether Hernandez–Orona would be eligible for placement at Labette, which was a nonprison sanction available at that time. See State v. Johnson, 42 Kan.App.2d 356, 357–59, 211 P.3d 861 (2009). The district court continued the hearing for Hernandez–Orona to obtain an assessment for Labette “as part of the sentence.” The prosecutor announced at the hearing that once the Labette assessment was completed and the parties had the results, “we can reconvene and conclude these proceedings.” The district court specifically denied the State's request that Hernandez–Orona be taken into custody at the end of the hearing. At the conclusion of the September 2006 hearing, the district court had not yet decided whether Hernandez–Orona would be sent to prison or placed at Labette as a condition of probation. The practical effect of the district court's ruling was to delay conclusion of the sentencing proceedings, and thus the imposition of the pronounced sentence, until after the Labette assessment was made.
Because sentencing was not completed at the September 2006 hearing, this court must next consider whether the district court erred in concluding the sentencing proceedings and confirming the previously pronounced sentence during the November 2006 hearing in Hernandez–Orona's absence. The defendant's right to be present at sentencing is codified at K.S.A. 22–3405, which states in part:
“(1) The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law. In prosecutions for crimes not punishable by death, the defendant's voluntary absence after the trial has been commenced in such person's presence shall not prevent continuing the trial to and including the return of the verdict.”
In State v. Fennell, 218 Kan. 170, 176, 542 P.2d 686 (1975), our Supreme Court recognized that a defendant's right to be present at sentencing is a statutory and common-law right, separate and apart from the constitutional right to be present at the trial. In Fennel, the defendant was convicted of aggravated escape from custody and aggravated assault of a law enforcement officer, but again escaped from custody before he could be sentenced. He was subsequently apprehended in Missouri and then extradited to California to serve an earlier sentence imposed by that jurisdiction. Kansas authorities later discovered the defendant's incarceration in California and filed detainers to have him extradited to Kansas. The State of Kansas eventually filed a motion to sentence the defendant in absentia on the aggravated escape from custody and aggravated assault convictions and served notice of the motion on the defendant and his counsel. The defendant filed several pro se documents indicating his desire to be present at sentencing. The district court denied the defendant's motions and proceeded to sentence him in absentia. 218 Kan. at 171–73.
On appeal, the defendant argued that the sentence had been illegally imposed on him because he was not personally present. After confirming the defendant's statutory right to be present at sentencing, our Supreme Court considered whether that right could ever be waived, and if so, whether the defendant had waived the right to be present under the facts of the case. The Supreme Court answered the first question in the affirmative:
“The authorities elsewhere as to the legal effect of the voluntary absence of an accused when sentence is pronounced are divided. One line of cases holds that an accused waives his right to be present when he willfully absents himself at the time sentence is to be pronounced. Another line holds an accused cannot waive this right, even by his voluntary or willful absence [citation omitted]. Generally, it may be said that most rights, even those constitutional, can within limitations be waived. K.S.A. 22–3405 is modeled after rule No. 43 of the Federal Rules of Criminal Procedure. In interpreting this rule in United States v. Brown, 456 F.2d 1112 [ (5th Cir.1972) ] the federal court said:
“... [A] defendant must be present at sentencing. Only in the most extraordinary circumstances, and where it would otherwise work an injustice, should a court sentence a defendant in absentia, and then only under appropriate safeguards, as where the defendant has expressly waived his right to be present either by sworn affidavit or in open court for the record.' (p. 1114 .)
“The federal view appears sound. In State v. Kelly, 213 Kan. 237, 515 P.2d 1030 [1973], we recognized two purposes for a defendant's presence at sentencing: First, so that the defendant may be taken into custody immediately for execution of the sentence—this purpose being one primarily for the state's benefit; and, second, so that the defendant may exercise his right of allocution—this primarily for the benefit of the accused. Therefore, the requirement for a defendant's presence being for the benefit of both parties, we concluded ‘While the statute is “mandatory” in the sense that either party may demand compliance, it is no more jurisdictional than the many other constitutional and statutory mandates which may be waived by a party for whose benefit they were fashioned.’ (p. 243)” 218 Kan. at 177.
The Fennell court next addressed whether the defendant had waived his right to be present at sentencing under the facts of the case. The court rejected the State's argument that the defendant's voluntary absence prior to sentencing constituted a waiver of his right to be present at sentencing. The court specifically rejected the State's reliance on Cox v. Hand, 185 Kan. 780, 347 P.2d 265 (1959), cert. denied363 U.S. 822 (1960), which held that a defendant's voluntary absence during the course of trial constituted a waiver of his or her right to be present at trial. The Fennell court noted that the Cox decision was based on “the evils which might befall if a defendant could frustrate a trial in progress merely by departing from the court.” 218 Kan. at 178. But the court noted that those same concerns do not apply to sentencing a defendant in absentia. In addition, the Fennell court distinguished Cox because the defendant in that case was personally present at sentencing. 218 Kan. at 178. Finally, the Fennell court determined that under the circumstances of the case, in which the defendant's whereabouts were known prior to sentencing and he had expressly requested to be present at sentencing, he had not waived his right to be present, notwithstanding the fact that he had voluntarily absented himself at the time he would normally have been sentenced. 218 Kan. at 178.
In State v. Braun, 253 Kan. 141, 144–46, 853 P.2d 686 (1993), our Supreme Court followed the rationale articulated in Fennell and applied a two-part test for sentencing a defendant in absentia: (1) it should only be done in extraordinary circumstances and where injustice would otherwise result; and (2) appropriate safeguards must be in place, as where the defendant has expressly waived his or her right to be present in open court or by sworn affidavit. The Braun court determined that the test had been met under the unique facts of that case and the district court had not erred in sentencing the defendant in absentia. 253 Kan. at 146–47.
Here, Hernandez–Orona voluntarily absented himself from the sentencing proceedings by absconding before his sentencing could be completed. Nevertheless, the State has not articulated any extraordinary circumstances which would have justified the conclusion of sentencing proceedings in November 2006 in Hernandez–Orona's absence. Furthermore, there is no indication whatsoever that Hernandez–Orona expressly waived his right to be present, and as discussed above, his mere voluntary absence cannot constitute such a waiver. Therefore, the sentence imposed during the November 2006 hearing was void. See Fennell, 218 Kan. at 178.
Because the sentence imposed in November 2006 was void, the district court retained jurisdiction to later impose a valid sentence. 218 Kan. at 178 (a void sentence may be corrected by imposition of a valid one); see also State v. Osbey, 238 Kan. 280, 288, 710 P.2d 676 (1985) (“Where a person convicted of a crime has never been legally sentenced, a proper sentence may later be imposed.”); Richardson v. Hand, 182 Kan. 326, 329, 320 P.2d 837 (1958) (a void sentence may be changed to a valid sentence without violating the rule that when a valid judgment and sentence have been entered, the court has no jurisdiction after the sentence has been executed to set aside or impose a new sentence), superseded by statute on other grounds as stated in State v. Patry, 266 Kan. 108, 110, 967 P.2d 737 (1998). Thus, we conclude the district court had jurisdiction to impose sentence in May 2011.
As a final matter, the State does not make any merits-based argument on appeal that the district court erred in excluding several prior person misdemeanors, determining Hernandez–Orona's criminal history score to be “G,” and sentencing him accordingly. The State has therefore abandoned the issue. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011). Because the district court had jurisdiction to sentence Hernandez–Orona in May 2011 and the State brings no other claim of error, we conclude the district court did not err in determining Hernandez–Orona's criminal history score and imposing sentencing in May 2011.
Affirmed.