State v. Morningstar

The opinion of the court was delivered by Biles, J.: This appeal concerns a consecutive sentence ordered after an appellate remand in a multiple-conviction case. See State v. Morningstar, 289 Kan. 488, 495, 213 P.3d 1045 (2009) (Morningstar I). The Court of Appeals dismissed the appeal because it determined it was without jurisdiction because the new sentence was within the presumptive range under the Kansas Sentencing Guidelines Act (KSGA). See State v. Morningstar, No. 103,433, 2011 WL 1878003, at *2 (Kan. App. 2011) (unpublished opinion) (Morningstar II); see also K.S.A. 21-4721(c)(1) (no direct appeal jurisdiction over presumptive sentences). We granted review to consider the panel’s jurisdictional analysis, as well as its determination that the district court acted properly. We hold that the panel erred in dismissing the appeal because appellate jurisdiction exists to determine whether the district court had authority to impose the consecutive sentence, even if that sentence fell within the presumptive range. See State v. Warren, 297 Kan. 881, 882-85, 304 P.3d 1288 (2013) (appellate court may consider limited question whether district court properly interpreted sentencing statute). As to the merits, we affirm the district court because die KSGA permits a district court imposing a term of imprisonment upon resentencing to determine anew whether the prison term runs consecutive to a defendant’s other sentences. We also hold that a district court may designate that the sentence for the primary crime of conviction runs consecutive to the defendant’s other sentences under the KSGA’s multiple-conviction sentencing statute. — 1238 — Factual and Procedural Background Gary L. Momingstar, Jr., was convicted of one count each of rape of a child under 14, aggravated battery, abuse of a child, and child endangerment. At his sentencing hearing, the district court imposed an off-grid hard 25 life sentence for the rape conviction as required by Jessica’s Law. See K.S.A. 21-4643. The court also applied the statutory sentencing grid to impose term-of-years sentences for the remaining convictions. See K.S.A. 21-4704. In doing so, the court used Morningstar’s full criminal history score to enhance the sentence for the aggravated battery conviction, which was the highest severity level grid crime. See K.S.A. 21-4720(b)(2)-(4). The district court tiren ordered tire term-of-years sentences to ran concurrent with each other and with the off-grid hard 25 life sentence for the rape conviction. See K.S.A. 21-4608(a); K.S.A. 21-4720(b). In Momingstar I, this court affirmed Momingstar’s convictions but vacated the off-grid rape sentence because the jury had not determined Morningstar’s age, which was necessary to impose that sentence under K.S.A. 21-4643. In other words, Momingstar’s off-grid sentence was not lawful. See 289 Kan. at 494-95. We remanded for resentencing on the rape conviction as a felony on the KSGA nondrug sentencing grid.” (Emphasis added.) 289 Kan. at 495. On remand, the parties recognized that imposing a grid sentence for rape also implicated Morningstar’s aggravated battery sentence because the rape conviction became Morningstar’s highest severity level grid offense. See K.S.A. 21-3502(c) (rape of child under 14 a severity level 1 felony). This meant the district court was required to apply Momingstar’s full criminal history to the rape conviction, which in turn required resentencing for the aggravated battery conviction without applying a criminal history score. See K.S.A. 21-4720(b)(2), (3), (5); State v. Sims, 294 Kan. 821, 825, 280 P.3d 780 (2012) (sentence illegal when, e.g., it differs in character or term from that authorized by statute). Given those KSGA requirements, tire district court sentenced Momingstar to 186 months’ imprisonment for rape based on tire — 1239 — appropriate grid box given his criminal history score. It also sentenced Momingstar to 43 months’ imprisonment for aggravated battery applying no criminal history score. It then ordered the rape sentence to run consecutive to the other sentences. As a practical matter, Momingstar is required to serve a total sentence of 229 months’ imprisonment—the sum of the rape sentence and the aggravated battery sentence (which is the longest of Morningstar’s concurrent sentences for aggravated battery, abuse of a child, and child endangerment). Momingstar challenged whether the district court on remand could order the rape sentence to mn consecutive to his other sentences. In an unpublished opinion, the Court of Appeals held the district court did not violate the Momingstar I mandate because the original rape sentence was necessarily nullified as a consequence of our decision to vacate it. The panel reasoned this allowed the district court to start over when resentencing on that offense under the KSGA. But after engaging in this analysis and conclusion, the panel then determined that Morningstar’s sentence was not reviewable on appeal under K.S.A. 21-4721(c)(1) because it was within the presumptive sentence range. The panel held that Morn-ingstar’s new sentence was subject to K.S.A. 21-4721(c)(1) (prohibition of direct appeal jurisdiction over presumptive sentences). Morningstar II, 2011 WL 1878003, at *2. Momingstar timely petitioned this court for review, which we granted under K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b). We must note Momingstar raised other issues in his petition for review and in a supplemental brief filed with this court that we do not reach because our review is limited to what Momingstar contends the panel wrongly decided. See Supreme Court Rule 8.03(g)(1) (2013 Kan. Ct. R. Annot. 77). At oral argument, Morn-ingstar agreed the only questions properly presented are the panel’s jurisdictional analysis and his consecutive sentence challenge. Dismissal for Lack of Jurisdiction We address this issue first because without subject matter juris — 1240 — diction, a court cannot address a case’s merits. See State v. Huerta, 291 Kan. 831, 840-41, 247 P.3d 1043 (2011) (“If subject matter jurisdiction is in question, that issue needs to be resolved first. The merits come second.”). Kansas appellate courts have jurisdiction to “correct, modify, vacate or reverse any act, order, or judgment of a district court to assure that any such act, order or judgment is just, legal and free of abuse.” K.S.A. 60-2101(a), (b). Under the KSGA, appellate courts lack jurisdiction over presumptive sentences. K.S.A. 21-4721(c)(1). But this prohibition does not extend to appellate review of a district court’s interpretation of its sentencing authority under the KSGA. See Warren, 297 Kan. at 885 (Court of Appeals had jurisdiction, despite sentence within presumptive range, to review claim that district court erroneously believed it did not possess authority to impose downward departure). Momingstar’s consecutive sentencing challenge concerns not merely the ultimate sentence imposed but the district court’s authority to impose it. This is not a challenge to a presumptive sentence precluded by K.S.A. 21-4721(c)(l). The panel erred when it dismissed Morningstar’s appeal for lack of jurisdiction. Accordingly, we consider tire merits of the challenge to his newly imposed consecutive sentence. Imposition of Consecutive Sentence Morningstar asserts three reasons why the district court could not run the rape sentence consecutive to his other sentences: (1) Morningstar I did not permit tire district court to impose consecutive sentences on remand; (2) there was no statutoiy authority for the district court to reconsider on remand its original decision to run Morningstar’s sentences concurrent with one another; and (3) the sentence for a defendant’s primary crime of conviction cannot run consecutive to a defendant’s other sentences. We disagree with each argument. The Morningstar I mandate Interpretation of an appellate court mandate and the determination of whether the district court complied with it on remand — 1241 — are both questions of law subject to de novo review. See State v. Guder, 293 Kan. 763, 765, 267 P.3d 751 (2012). In State v. Heywood, 245 Kan. 615, 618, 783 P.2d 890 (1989), the court held in a pre-KSGA case that a mandate like the one at issue here did not prohibit a district court from changing concurrent sentences to sentences that run consecutive with one another. In that case, the convictions initially sentenced as class B felonies were remanded for resentencing as class C felonies. 245 Kan. at 618. The Heywood court held that the change from concurrent to consecutive sentences did not exceed the mandate because the sentences imposed on remand were within the district court’s statutory authority under the then-existing sentencing scheme. The court explained that in remanding the convictions for resentencing as class C felonies, it intended that tire district court be permitted to exercise that authority. 245 Kan. at 618. Similarly, our decision in Morningstar I concerned only whether Morningstar could be sentenced off-grid for rape under Jessica’s Law due to the State’s failure to prove the defendant’s age to the jury beyond a reasonable doubt. In ordering resentencing under the grid, our mandate did not restrict the district court’s statutory sentencing authority on remand. It was intended only to permit the district court to exercise whatever authority it might have under the KSGA. We consider that question next. Authority to modify rape sentence to ran consecutive to other sentences under the KSGA Morningstar argues the district court lacked statutory authority to order the new rape sentence to run consecutive to his other sentences, citing language in K.S.A. 21-4720(b)(5). He does not argue the district court’s action was vindictive or violated due process or double jeopardy. The Court of Appeals held the district court had authority to change a sentence from concurrent to consecutive upon resent-encing as long as there was no presumption of vindictiveness, citing Heywood, 245 Kan. at 618-20. Morningstar II, 2011 WL 1878003, at *2. And as discussed, the panel is correct that Heywood affirmed the district court’s authority to resentence a defendant to consec — 1242 — utive terms when the sentence for the same crime of conviction was remanded for resentencing. But Heywood was decided before the KSGA’s enactment, and the Heywood court relied on the district court’s broader pre-KSGA discretion when imposing a sentence in supporting its outcome. 245 Kan. at 617-18. Subsequent decisions limiting a district court’s jurisdiction to modify a sentence under the KSGA raise questions whether Heywood remains good law when the question concerns the district court’s statutory authority. In State v. Miller, 260 Kan. 892, 897, 926 P.2d 652 (1996), the court held the legislature intentionally eliminated a sentencing court’s authority to modify sentences by omitting provisions like the one that permitted pre-KSGA sentencing courts to modify already imposed sentences within 120 days of sentencing. 260 Kan. at 897. The court held: “ ‘When a lawful sentence has been imposed under KSGA, the sentencing court has no jurisdiction to modify that sentence except to correct ‘arithmetic or clerical errors’ pursuant to K.S.A. 21-4721(i).” (Emphasis added.) 260 Kan. at 900. Admittedly, Miller is factually distinguishable because it did not involve modification of a sentence on remand for resentencing. But the same principle—that courts have limited jurisdiction to modify sentences—was also applied in Guder, 293 Kan. 763, which did involve resentencing of an unlawful sentence. In Guder, which was decided after the panel issued its decision in this case, the question concerned a multiple-conviction case in which an appellate court remanded only the defendant’s primaiy crime of conviction for resentencing, while leaving intact the other convictions and sentences on those convictions. On remand, the district court modified one of the defendant’s lawful, non-vacated sentences to run consecutive to the other sentences. In a second appeal challenging the resentencing, the defendant argued the district court lacked authority to modify the previously imposed concurrent sentence when resentencing for a different conviction. On review, our court agreed with the defendant that the district court lacked authority to modify the previously imposed, non-vacated sentence. 293 Kan. at 767. — 1243 — In doing so, the Guder court noted that prior to the KSGA district courts could resentence defendants on all counts in multiple-conviction cases, even if the sentence for only one count was disturbed on appeal, because the sentences collectively comprised a single, whole judgment. 293 Kan. at 765-66 (citing State v. Woodbury, 133 Kan. 1, 2, 298 P. 794 [1931], and subsequent cases). But the Guder court held that the KSGA abrogated that earlier authority, and further held that a previously imposed, lawful sentence that was not vacated on appeal could not be modified at resent-encing absent specific statutory authority to do so. 293 Kan. at 765-66. The Guder court then examined K.S.A. 21-4720(b)(5) to determine whether there was statutory authority for the district court’s action. That statute states: “Nonbase sentences will not have criminal history scores applied, as calculated in the criminal history I column of the grid, but base sentences will have the full criminal history score assigned. In the event a conviction designated as the primary crime in a multiple conviction case is reversed on appeal, the appellate court shall remand the multiple conviction case for resentencing. Upon resentencing, if the case remains a multiple conviction case the court shall follow all of the provisions of this section concerning the sentencing of multiple conviction cases.” (Emphasis added.) K.S.A. 21-4720(b)(5). The Guder court summarized this statute as providing that “in the event that a conviction of the primary crime is reversed on appeal, the sentencing court is to follow all of the KSGA provisions concerning sentencing in multiple conviction cases.” (Emphasis added.) 293 Kan. at 766. The court then held that because the KSGA does not provide other grounds to modify, authority to modify does not exist in a multiple-conviction case unless the conviction for the primary crime is reversed. Applying that rule, the Guder court held a district court lacks jurisdiction when resentencing in a multiple-conviction case to modify non-vacated sentences for the other crimes of conviction because only the sentence for the primary offense was vacated, the conviction itself was not reversed. 293 Kan. at 767. But the caveat to Guder is that tire non-vacated sentences must be otherwise lawful when the case is returned to the district court on remand. See Miller, 260 Kan. at 899 (recognizing the KSGA — 1244 — limits a court’s powers to modify a lawful sentence). In Momings-tar’s case, the district court had to correct the aggravated battery sentence as well because it was no longer the primaiy offense after the off-grid rape sentence was vacated. In other words, Momings-tar’s criminal history score could no longer enhance the aggravated battery sentence, so absent modification on remand Momingstar’s aggravated battery sentence would have been an illegal sentence. See K.S.A. 21-4720(b)(2), (3), (5); Sims, 294 Kan. at 825 (sentence illegal when, e.g., it differs in character or term from that authorized by statute). Guder is distinguishable because the district court here did not modify the sentences for any convictions that were not affected by our decision in Momingstar I. The district court had to make changes on remand to both Morningstar’s rape sentence and his original aggravated batteiy sentence so that the whole judgment conformed to the KSGA’s requirements. For this reason, we reject Morningstar’s argument that K.S.A. 21-4720(b)(5) prohibited the district court from addressing the concurrent or consecutive nature of the rape sentence. But the question still remains whether that aspect of the rape sentence was within the district court’s power to address when ensuring Momingstar’s sentences conformed to the KSGA. We hold that it was. The sentence for each crime of conviction is multifaceted. In some cases, it encompasses confinement or other manners of du-rational punishment (such as probation), the place and duration of such punishments, monetary penalties (fines, fees, expenses, or restitution), and offender registration and postrelease supervision requirements. See K.S.A. 21-4603d; K.S.A. 21-4608; K.S.A. 21-4704; K.S.A. 21-4720. The panel concluded that the district court was “required to resentence Momingstar de novo, as if he had never been sentenced on the crime before.” Morningstar, 2011 WL 1878003, at *1. In so stating, the panel’s analysis seemingly implicates all aspects of a defendant’s sentence. But this would far exceed what the district court actually did and what Momingstar challenges. We are solely concerned with the district court’s decision to run the newly imposed rape sentence consecutive to Momingstar’s other sentences. — 1245 — The district court was tasked with imposing a grid sentence for the rape conviction. At minimum, it needed to exercise its discretion and select the appropriate term of months from the range supplied by the applicable grid block. See K.S.A. 21-4704(e)(l). But selecting the term from the applicable grid box is not the only decision a district court must make in determining a grid sentence’s length. See K.S.A. 21-4716 (providing mechanism for departing from presumptive sentences supplied by KSGA grid); K.S.A. 21-4720(a) (providing discretion to run sentences consecutive in multiple-conviction cases). In cases like Morningstar’s involving multiple convictions, whether a sentence runs consecutive to the defendant’s other sentence or sentences is related, if not intertwined, with the sentencing court’s discretion to choose the appropriate term of months. See K.S.A. 21-4720(a), (b) (consecutive sentences yield prison term equal to sum of the consecutive terms); see also State v. Stafford, 255 Kan. 807, 816-20, 878 P.2d 820 (1994) (upholding pre-KSGA consecutive sentences as within sentencing court’s discretion when district court considered statutory factors for determining sentences’ minimum terms in ordering sentences to run consecutively). The district court necessarily had to apply the KSGA provisions governing the terms of grid sentences to determine the sentence’s length. In doing so, the district court had to exercise its independent judgment—within the limitations imposed by the KSGA—to determine the appropriate sentence. We hold that running the new rape sentence consecutive to the other sentences was a permissible mechanism available to the district court under the KSGA for regulating the sentence’s length. The district court properly addressed the facets of Momingstar’s vacated rape sentence that were before it on remand, which included whether the new sentence should run consecutive to the other sentences. Authority to run sentence for primary crime of conviction consecutive to other sentences Finally, Morningstar argues K.S.A. 21-4720 prohibited the district court from ordering the sentence for his primary crime, rape, — 1246 — to run consecutive to his other sentences. Interpretation of the sentencing statutes is a question of law subject to unlimited review. See Guder, 293 Kan. at 765. Morningstar does little to develop this argument, which hinders the analysis. But essentially he contends the sentencing guidelines require the base sentence to be established first and only after that can a sentence for a nonbase crime be determined, including whether it runs consecutive to tire base sentence. We do not find this requirement in the statutes. K.S.A. 21-4608 and K.S.A. 21-4720 both permit a district court to run two or more sentences consecutive with one another. In multiple-conviction cases, K.S.A. 21-4720 does not dictate the order in which consecutive grid sentences must be imposed or served. More precisely, the statute does not say the sentence for a primary crime cannot be run consecutive to another sentence or sentences. In any event, it is inconsequential whether the sentence for a primary crime is consecutive to another grid sentence or whether the converse is true. All consecutive grid sentences are aggregated into a single controlling sentence. See K.S.A. 21-4720(b)(l). What matters is only whether the sentences are consecutive with one another and, therefore, aggregated; or concurrent with one another and, therefore, not aggregated. And while authorizing the district court to impose consecutive sentences, K.S.A. 21-4720 contains no express prohibition against running the sentence for a primary crime of conviction consecutive to a defendant’s other sentences. We will not read into the statute a prohibition that does not exist in its text. We hold the district court did not err when it ordered the rape sentence to run consecutive to Morningstar’s other sentences. The net result, which is a controlling 229-month prison term, is in harmony with the statute. The Court of Appeals decision dismissing the case for lack of jurisdiction is reversed. The sentence imposed by district court is affirmed. [[Image here]]