Skip navigation
PYHS - Header
× You have 2 more free articles available this month. Subscribe today.

Kansas Supreme Court: Defendants May File a Motion to Correct Illegal Sentence in Appellate Court While on Direct Review

by Douglas Ankney

The Supreme Court of Kansas held that Kansas law permits a defendant to file a motion to correct an illegal sentence in appellate court on direct appeal; the legal standard for remand on the motion is K.S.A. 2022 Supp. 21-­6814(d); and the 2022 amendment to K.S.A. 6814 applies to cases pending direct review or are not yet final.

Justice W. Steinert entered an Alford plea to aggravated robbery and other charges. [Note: An “Alford plea” allows a defendant to plead guilty based on the strength of the prosecution’s evidence while not admitting guilt. North Carolina v. Alford,400 U.S. 25 (1970).] A presentence investigation report (“PSI”) calculated his criminal history score as H (the second lowest), based in part on a 2016 Arkansas conviction. The PSI described the offense as “Theft/Shoplifting” under Ark. Code Ann. § 5-­36-­116. Steinert was sentenced to 71 months’ imprisonment, and he timely appealed.

Steinert’s appellate counsel obtained a copy of what he alleged to be the journal entry from the 2016 Arkansas conviction, which listed the violated statute alternately as Ark. Code Ann. § 5-­36-­116 and as Ark. Code Ann. § 5-­36-­102. The space identifying Steinert’s attorney in the Arkansas conviction was left blank.

Ultimately, appellate counsel filed a motion to correct an illegal sentence in the Court of Appeals (“COA”) under K.S.A. 2022 Supp. 22-­3504 with the journal entry attached. Counsel argued that “the Arkansas journal entry did not establish his crime, so it was impossible to determine whether a comparable Kansas offense existed. Out-­of-­state misdemeanor convictions may be used in the calculation of a criminal history score “only if there is a comparable Kansas offense.” K.S.A. 2022 Supp. 21-­6811(e)(2)(B). Counsel also argued that the unsigned journal entry revealed Steinert did not have counsel in the Arkansas case. “Uncounseled misdemeanor convictions generally cannot be used to enhance a sentence in a different case.” State v. Youngblood, 206 P.3d 518 (Kan. 2009).

“Under the Kansas Sentencing Guidelines Act, the presumptive sentence for most felonies is derived from the severity level of the offense and the defendant’s criminal history, which is reflected in a criminal-­history score.” K.S.A. 2022 Supp. 21-­6804 and 21-­6805. A “sentence is illegal and may be corrected ‘at any time’ if it fails to conform to these” provisions. K.S.A. 2022 Supp. 22-­3504.

Appellate counsel requested that the COA remand to the district court pursuant to K.S.A. 2021 Supp. 22-­3504(a) “because [Steinert] bore the burden of proving criminal-­history error on appeal.” K.S.A. 2022 Supp. 21-­6814(c).

The COA denied relief, holding that “a defendant may not file a K.S.A. 22-­3504 motion in an appellate court.” The COA reasoned: “To say that an illegal sentence may be corrected ‘at any time’ does not mean that one may file that motion ‘in any court.’ We are a court of review, not a fact-­finding court.” Because the journal entry was not part of the appellate record, Steinert failed to meet his burden in showing his criminal-­history score was incorrect.

One week after the COA issued its opinion, the Legislature’s amendment to K.S.A. 6814 took effect, providing: “(d) If an offender raises a challenge to the offender’s criminal history for the first time on appeal, the offender shall have the burden of designating a record that shows prejudicial error…. In designating a record that shows prejudicial error, the defendant may provide the appellate court with journal entries of the challenged criminal history that were not originally attached to the criminal history worksheet.”

Steinert moved the COA to reconsider its opinion on the date the amendment took effect. The COA denied Steinert’s request without analysis. The Kansas Supreme Court granted Steinert’s petition for review.

The Court observed that in State v. Keel, 357 P.3d 251 (Kan. 2015), the defendant filed a K.S.A. 22-­3504 motion in the Kansas Supreme Court while his discretionary appeal on other issues was pending. The Keel Court held that the defendant’s motion was properly before the Court because K.S.A. 22-­3504(1) authorizes “a court to correct an illegal sentence ‘at any time.’” Similarly, in State v. Dickey, 350 P.3d 1054 (Kan. 2015), the Court held that “a challenge to the classification of a prior conviction and the resulting criminal-­history score could be raised for the first time on appeal because it presented an illegal-­sentence claim.” Thus, the Court in the current case concluded the COA erred.

Regarding the 2022 amendment to K.S.A. 21-­6814, “when an offender raises a criminal-­history challenge for the first time on appeal, ‘the offender may provide the appellate court with journal entries of the challenged criminal history,’ and ‘[t]he court may remand the case if there is a reasonable question as to whether prejudicial error exists.’” K.S.A. Supp. 21-­6814(d). Therefore, 21-­6814(d) was the legal standard for remand, not 21-­3504(a), according to the Court.

Finally, the Court stated that the 2022 amendment was applicable to Steinert’s appeal. The Court explained that new “rules for conducting criminal prosecutions generally apply to cases pending on direct review or not yet final.” State v. Thurber, 420 P.3d 389 (Kan. 2018).

Because the State disputed whether the document defense counsel had obtained was, in fact, a journal entry, the Court determined that this “factual dispute” was to be resolved in the district court in the first instance.

Accordingly, the Court reversed the COA’s holding denying Steinert’s illegal-­sentence claim and remanded that issue to the district court. See: State v. Steinert, 529 P.3d 778 (Kan. 2023).  

As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

 

 

BCI - 90 Day Campaign - 1 for 1 Match
Advertise Here 4th Ad
The Habeas Citebook Ineffective Counsel Side