State v. McMillan ( 2024 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 124,726
STATE OF KANSAS,
Appellee,
v.
PETTIX MCMILLAN,
Appellant.
SYLLABUS BY THE COURT
1.
Sentences in a multiple count case fail to conform to applicable statutory
provisions and are illegal when the judge fails to identify the primary count, to assign
sentences to each count, and to identify criminal history scores on each count and the
record makes it impossible to otherwise determine the sentences the judge imposed.
Under those circumstances, an appellate court may vacate all sentences and remand for
resentencing on all counts.
2.
In a case involving a multiple count sentence, if an appellate court holds the
sentences are illegal and vacates all sentences and thus new sentences need to be
imposed, the revised Kansas Sentencing Guidelines Act, K.S.A. 21-6801 et seq., opens
the door to consideration of departure issues the defendant may raise and the resentencing
judge has jurisdiction to consider those issues.
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3.
On a remand for resentencing on all counts, a district court has jurisdiction to
consider a departure motion unless a mandate explicitly states otherwise, or it is
determined consideration is otherwise precluded.
Review of the judgment of the Court of Appeals in an unpublished opinion filed January 13,
2023. Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Oral argument held September
14, 2023. Opinion filed August 9, 2024. Judgment of the Court of Appeals vacating the judgment of the
district court is affirmed in part and reversed in part. Judgment of the district court is vacated, and the
case is remanded with directions.
Ryan J. Eddinger, of Kansas Appellate Defender Office, argued the cause and was on the briefs
for appellant.
Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
Derek Schmidt, former attorney general, and Kris W. Kobach, attorney general, were with him on the
briefs for appellee.
The opinion of the court was delivered by
LUCKERT, C.J.: After a jury convicted Pettix McMillan of three counts of
attempted first-degree murder, he filed three direct appeals attacking the legality of his
convictions or his sentences. In his second appeal, a Court of Appeals panel vacated his
sentences on all counts and remanded his case to the district court for resentencing. See
State v. McMillan, No. 115,229, 2021 WL 642297 (Kan. App.) (unpublished opinion)
(McMillan II), rev. denied 313 Kan. 1044 (2021). On remand, McMillan received a new
sentence and appealed again. The McMillan III panel disagreed with the McMillan II
panel's decision to vacate all counts. It held the resentencing judge lacked authority to
impose a new sentence on two counts the McMillan II panel had vacated because
McMillan had received a legal sentence on those counts. It also held that the resentencing
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judge erred by not considering McMillan's departure motion. State v. McMillan, No.
124,276, 2023 WL 176653 (Kan. App. 2023) (unpublished opinion) (McMillan III).
On review of that decision, we hold McMillan's entire original sentence was
illegal and thus the McMillan II panel correctly vacated all sentences and the McMillan
III panel erred when it concluded the second sentencing judge had authority to impose a
sentence on only one count. We also conclude, in agreement with the McMillan III panel,
that the second sentencing judge should have considered McMillan's departure motion
when conducting the resentencing. We thus remand for a third sentencing hearing.
FACTS AND PROCEDURAL BACKGROUND
McMillan's three convictions arise out of a single incident in which McMillan shot
members of his family. Each count involved McMillan shooting a different family
member: count one, his then-wife; count two, his then 13-year-old son; and count three,
his then 5-year-old son. The State charged McMillan with three counts of attempted first-
degree murder, a severity level 1 person felony.
Before trial, the State notified McMillan it intended to ask for upward durational
departure sentences on counts two and three—the charges relating to his sons. At trial,
the jury determined the State had proved two aggravating sentencing factors beyond a
reasonable doubt: (1) each child victim was particularly vulnerable due to his age, and
McMillan knew the children's ages, and (2) McMillan owed a fiduciary responsibility to
each child victim.
Post-trial, McMillan filed a motion asking for a downward departure from the
presumptive sentences. He argued several mitigating factors offset the aggravating
factors found by the jury.
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During arguments by the attorneys about the appropriate sentence, the prosecutor
asked the judge to impose an upward departure sentence for a total of 1,068 months.
Defense counsel argued the downward departure factors offset the aggravating factors
found by the jury.
After hearing arguments, the sentencing judge denied McMillan's downward
departure motion. He described McMillan's offenses as "terrible" and added that "[i]t is
very lucky that no one was killed." When addressing the fact that McMillan shot his five-
year-old son, the judge called the act "horrible" and noted the child required multiple
surgeries. The judge concluded there was no substantial and compelling reason to depart
downward. Instead, the judge held that the aggravating factors found by the jury
warranted granting the upward durational departure requested by the State. The judge
found the State had met its burden of establishing McMillan's criminal history, which
scored as category D.
The judge then asked the prosecutor several questions about sentencing rules,
confirmed that the State was relying on the aggravating factors found by the jury, and
asked the prosecutor for the State's recommendation on each count. The prosecutor
started to answer but was cut off before completing the explanation. During the answer,
the prosecutor referred to doubling count one and then doubling it again. As the answer
continued the prosecutor referred to all counts and said, "You would give a sentence of
the aggravated number on each count and then pronounce the doubling after you find—."
It was at this point, before the prosecutor had fully laid out the findings the judge needed
to make, that the judge interrupted and stated, "Okay. And that will be the Order of the
court for a total sentence of 1,068 months." The judge provided no other explanation of
the sentence.
The journal entry reflected consecutive, upward departures on each count. Count
one was shown as the primary count with a prison sentence of 534 months, which is
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double the aggravated presumptive sentence of 267 in the revised Kansas Sentencing
Guidelines Act (KSGA) grid box for a level 1, criminal history D conviction. The journal
entry showed that counts two and three ran consecutive to count one and to each other,
and it recorded a 330-month sentence of imprisonment on both; 330 months is double the
aggravated presumptive sentence of 165 months in the KSGA grid box for a level 1,
criminal history I conviction. See K.S.A. 2013 Supp. 21-6804 (sentencing grid at time
crimes committed).
McMillan I and Remand Proceedings that Followed
McMillan appealed, arguing he had been denied his statutory right to a speedy trial
and his constitutional right to appear personally at all critical stages of the case.
McMillan did not seek appellate review of his sentence or of the judge's decision to deny
his departure motion. The Court of Appeals affirmed McMillan's convictions. State v.
McMillan, No. 115,229, 2017 WL 3447000 (Kan. App. 2017) (unpublished opinion)
(McMillan I), summarily rev'd and remanded by unpublished order (Kan. 2018).
McMillan sought review, and this court granted his request. This court summarily
reviewed the panel's decision, and remanded McMillan's appeal to the Court of Appeals
with directions to consider a then-recent decision of this court about the right to be
present during critical stages of a trial. In turn, the Court of Appeals remanded the case to
the district court for an evidentiary hearing and factual findings. After conducting these
proceedings, the district court ruled against McMillan.
McMillan II and Remand Proceedings that Followed
McMillan appealed again. He renewed his argument that the district court violated
his statutory speedy trial rights and erred in denying him relief for a violation of his
constitutional right to be present at a critical stage of his trial. He also raised a new
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argument, contending for the first time in any court that his sentence was illegal because
an aggregate sentence of 1,068 months of imprisonment exceeded the statutory maximum
sentence. McMillan II, 2021 WL 642297, at *1.
A Court of Appeals panel first considered the district court's rulings that McMillan
suffered no violation of his constitutional right to be present at critical stages of the trial
proceedings or his speedy trial right. The panel agreed with the district court's
conclusions, and it affirmed McMillan's convictions. 2021 WL 642297, at *5-7. At that
point, this issue essentially became settled and has not resurfaced in later proceedings.
The panel then considered the issue still being disputed: McMillan's newly raised
challenge about the legality of his sentence. The State conceded that McMillan's sentence
exceeded the length allowed under the KSGA, and the McMillan II panel agreed "the
aggregate prison term of 1,068 months exceeds the statutory maximum and must be set
aside." 2021 WL 642297, at *7. The panel added that "the district court clearly intended
to impose the longest term of imprisonment permitted under the guidelines," which the
panel determined was 1,029 months. The panel concluded: "We, therefore, vacate
McMillan's sentences and remand to the district court for resentencing." 2021 WL
642297, at *8. It also directed the district court to "resentence McMillan consistent with
this opinion." 2021 WL 642297, at *8.
On remand to the district court, McMillan moved again for a downward durational
departure sentence. He renewed the arguments he had made during the original
sentencing hearing and offered the new mitigating factors of his productive behavior and
good disciplinary record while incarcerated.
At the resentencing hearing, the judge and the attorneys discussed the McMillan II
decision. Each agreed that the original sentences on all counts were vacated and new
sentences needed to be imposed on each count. The prosecutor cited State v. Jamerson,
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309 Kan. 211, 433 P.3d 698 (2019), and explained that it "basically says what the Court
just said on the record which is when one or more of the sentences in a multi-conviction
case is illegal, District Courts may only correct the illegal sentence." The State then
addressed all three counts, stating it understood that all the original sentences were
illegal, and asked the resentencing judge to designate either count two or three as the
primary count and to double the sentences for both counts. McMillan's counsel also
recognized that McMillan II could be read to hold that the error made at the original
sentencing "is inextricably bound between counts, we are back here with an instruction[]
that there is currently no sentence. There is a conviction but no sentence imposed at this
time and it must be corrected as a whole." McMillan's counsel then asked the judge to
also consider the downward departure motion.
The judge stated he did not think he had jurisdiction to consider the departure
motion. Turning to the sentencing, the judge observed that "even the Court of Appeals
did not consider the primary offense to be Count 1." The judge then designated count two
as the primary count, found McMillan had a criminal history of D that applied to the
primary count, and doubled the aggravated presumptive grid box sentence. Applying a
criminal history of I to the other counts, the judge doubled the sentence for count three
but did not double the sentence for count one and ran the sentences consecutive to each
other for a total term of 1,029 months.
McMillan III
McMillan appealed for the third time, arguing the district court had jurisdiction to
consider his departure motion and erred in not doing so. McMillan III, 2023 WL 176653,
at *1. A Court of Appeals panel of different judges raised a new issue and ordered
supplemental briefing "'on the question of whether the district court had authority to
modify McMillan's sentence on count two in resentencing him.'" 2023 WL 176653, at *6.
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After reviewing the supplemental briefing, the panel held the original sentencing
judge had imposed an illegal sentence on count one only. The panel focused on the
journal entry of judgment and remarks by the prosecutor during the original sentencing
hearing about how to structure the sentence. It then concluded the original judge had
intended for count one to be the primary count, even if he did not orally designate the
primary or base count. But it agreed with McMillan that no upward departure factors
applied to count one, so the upward durational departure imposed by the sentencing judge
made McMillan's sentence illegal as to count one. The panel also held the sentencing
judge had imposed legal sentences on counts two and three and those sentences could not
be changed. 2023 WL 176653, at *10.
The panel remanded for a third sentencing hearing and directed "that the district
court must designate count one as the primary offense and impose consecutive sentences
of 330 months on counts two and three." 2023 WL 176653, at *13. The panel added that
if the district court decided in the exercise of its discretion "to again impose the
maximum presumptive sentence of 267 months on count one, [McMillan's] maximum
controlling sentence would be limited to twice that figure: 534 months." 2023 WL
176653, at *13.
The State timely sought review. We have jurisdiction under K.S.A. 20-3018(b)
(allowing jurisdiction over petitions for review of Court of Appeals decisions); K.S.A.
60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions on
petition for review).
ANALYSIS
In the State's petition for review, it argues the McMillan III Court of Appeals panel
erred by holding the resentencing judge could not modify McMillan's sentence on count
two and by holding the resentencing judge could not designate count two as the primary
8
count. It also argues the panel erred by holding the resentencing judge should have
considered McMillan's departure motion on remand.
We agree with the State's arguments that the panel erred in concluding the
resentencing judge could not designate count two as the primary count and impose a new
sentence. But we reject its arguments about the departure motion.
ISSUE 1: The resentencing judge did not err in resentencing McMillan on count two.
We will first address the issue the McMillan III panel raised and asked the parties
to brief: Did the resentencing judge have authority to modify McMillan's sentence on
count two? As revealed in our factual summary of the resentencing hearing, the
resentencing judge understood he had a mandate to do so, as did the parties. The
McMillan II decision stated as much because the panel explicitly vacated the "sentences,"
which meant, as defense counsel stated, there was no sentence when the resentencing
judge started the resentencing hearing. The question is thus better phrased as whether the
McMillan II panel correctly vacated the sentence on count two.
To resolve that question, we must look to Kansas statutes because, as this court
has stated, courts have "no authority to modify a sentence unless plain statutory language
provides such authority." State v. Guder, 293 Kan. 763, 766, 267 P.3d 751 (2012). Both
the KSGA and the illegal sentence statute, K.S.A. 22-3504, address when courts have
such authority.
The KSGA states that "the appellate court shall not review: (1) Any sentence that
is within the presumptive sentence for the crime." K.S.A. 21-6820(c)(1). Ultimately, the
McMillan III decision that the resentencing judge could not impose a new sentence on
count two rests on this statute. But our statutes also empower courts to correct an illegal
sentence, which is one that, among other things, "does not conform to the applicable
9
statutory provision, either in character or punishment[] or that is ambiguous with respect
to the time and manner in which it is to be served at the time it is pronounced." K.S.A.
22-3504(c)(1). Thus, while many presumptive sentences must evade appellate review,
appellate courts may review even a presumptive sentence if some aspect of it is illegal
under another sentencing statute or is ambiguous as to time and manner of service. See
State v. Steinert, 317 Kan. 342, 529 P.3d 778 (2023) (remanding to district court for
determination of whether presumptive sentence was illegal due to questions about
criminal history score).
The question of whether the resentencing judge had authority to resentence on
count two (or whether the McMillan II court erred in vacating the sentence on count two)
puts us in the unusual situation of, in effect, reviewing a Court of Appeals decision that is
not technically before us. But we must do so to determine whether the resentencing judge
imposed legal sentences. The determination of whether McMillan's sentences were illegal
requires interpreting KSGA sentencing requirements and presents a question of law
subject to our unlimited review. State v. Newman-Caddell, 317 Kan. 251, 258-59, 527
P.3d 911 (2023).
Undisputedly, Some Aspects of the Original Sentence Were Illegal
One aspect of the analysis about whether McMillan's original sentences conformed
to applicable statutes is straightforward and clear. That clarity is revealed by the parties'
agreement that the original journal entry recorded a departure sentence for count one
relating to the shooting of McMillan's then-wife and that the departure was illegal
because it did not conform to applicable statutory provisions. As the parties agree, K.S.A.
21-6815(a) allows a departure only when substantial and compelling reasons support a
departure factor. The jury verdict established substantial and compelling reasons on the
counts arising from McMillan shooting his sons—counts two and three—but provided no
basis for a departure on the count relating to his then-wife—count one. Thus, no legal
10
basis existed for a departure sentence on count one. The McMillan II panel appropriately
vacated that count, and the McMillan III panel likewise did not err in recognizing the
illegality of the original sentence on count one. McMillan III, 2023 WL 176653, at *10;
McMillan II, 2021 WL 642297, at *8; see K.S.A. 21-6820(d) (allowing appeal of
departure sentence based on claim departure was not supported by evidence and did not
constitute a substantial and compelling reason for departure).
The parties also agree that the total sentence of 1,068 months announced at the
first sentencing was illegal. In McMillan II, this was the focus of the appeal and was
undisputed. But then the McMillan III panel raised the more nuanced question of whether
the discrete sentence on count two was legal. In other words, did the McMillan II panel
err when it vacated the sentence on count two?
We Cannot Discern the Original Sentences on Individual Counts
The McMillan III panel's discussion of count two in isolation from counts one and
three rests on the concept that each count must be considered discreetly when analyzing
whether the sentence is illegal. This discrete consideration flows from the provisions of
the KSGA that alter previous law. Before the KSGA was adopted, sentences for multiple
counts "were regarded as a singular entity that could not be subdivided into correct and
incorrect counts. So remand for resentencing on one count allowed all counts to be
resentenced as the courts saw fit." State v. Warren, 307 Kan. 609, 612, 412 P.3d 993(2018). But this court held that the KSGA changed the common-law rule. Guder, 293
Kan. at 766-67. As we would later state, the holding in Guder stands for the principle that
the KSGA "bars the district court from resentencing on any nonvacated counts." Warren,
307 Kan. at 609. That statement taken on its face would mean the resentencing judge had
jurisdiction because all sentences had been vacated. But we recognize the tension
between that statement and the combination of K.S.A. 21-6820(c)(1), which does not
allow review of presumptive sentences, and recognition that an appellate court may
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vacate only illegal sentences when acting under the jurisdiction conferred by the illegal
sentencing statute. Likewise, the resentencing district court judge does not have
"authority to resentence anew for all of the convictions" and may only resentence for the
illegal sentences. Jamerson, 309 Kan. at 216.
The McMillan II panel did not explain why any individual count's sentence might
be illegal, focusing on the illegality of the total controlling sentence. But it correctly
determined that the total sentence exceeded the maximum allowed by law. See McMillan
II, 2021 WL 642297, at *8; see also K.S.A. 2013 Supp. 21-6819(b)(1), (4). Even so, it
may not have been necessary to vacate the sentences on all three counts to fix the
illegality identified in McMillan II if indeed that were the only illegality. But the State
contends the original sentencing judge made more errors than just setting the overall total
beyond the maximum allowed.
On appeal, the State emphasizes that the judge did not designate a primary count,
the criminal history applied to the individual counts, or the prison term of each sentence.
In this sense, the State argues both that the sentence was ambiguous as to time and place
and failed to conform to applicable statutes. It also initially argued that the original
sentencing judge implicitly designated count two as the primary count by referring at one
point to the first departure count.
The McMillan III panel rejected the argument that the sentence was ambiguous as
to time and place, concluding the time and place was clear: 1,068 months and prison.
2023 WL 176653, at *13. It also rejected the State's argument that the sentencing judge
implicitly designated count two as the primary count. The State does not counter those
rulings before us. But it does continue to point out that the original sentences failed to
comply with many KSGA provisions. And it argues the McMillan III panel erred when it
concluded the original sentencing judge implicitly designated count one as the primary
count and in holding the judge thus imposed lawful sentences on counts two and three
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that were not subject to modification on remand. See 2023 WL 176653, at *10-13. It now
contends that we cannot discern the individual sentences on any count. McMillan
disagrees and asks us to affirm the Court of Appeals decision.
Sorting out whether the sentencing judge designated a primary count and what he
intended as the sentence on each count requires both an examination of the record and of
statutory requirements in the KSGA for imposing a sentence. We start by summarizing
the statutory scheme to provide the framework for our discussion of the record.
The KSGA provides direction in multiple conviction cases like this one. In such
cases, "the sentencing judge shall establish a base sentence for the primary crime."
K.S.A. 21-6819(b)(2). The KSGA builds the sentence for the remaining counts on that
base. "The primary crime is the crime with the highest crime severity ranking" except
when, as here, multiple counts have the same crime severity ranking. In that
circumstance, the statute directs "the sentencing judge [to] designate which crime will
serve as the primary crime." K.S.A. 21-6819(b)(2). The criminal history applied to each
count varies depending on whether the count is the base or nonbase count. See K.S.A.
21-6819(b)(5) ("Nonbase sentences shall not have criminal history scores applied, as
calculated in the criminal history I column of the grid, but base sentences shall have the
full criminal history score assigned."). And the base count sets the cap on the ultimate
length of a consecutive sentence. See K.S.A. 21-6819(b)(4) (capping aggregate term at
double the base sentence no matter how many convictions or the individual sentences
imposed for each conviction). Here, the transcript raises questions about how the
sentencing judge applied these rules.
Our review of the transcript of the original sentencing hearing confirms that
neither the original sentencing judge nor the prosecutor explicitly designated a primary
count. The only place we find the word "primary" in the transcript of the original
sentencing is when the judge observed that "when there are multiple counts the most
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someone can be sentenced to is double the high number in the first primary count." The
prosecutor agreed, and the judge added, "And that happens to come to 534 months,"
which would be double the aggravated number in the grid box representing the
intersection of a level one severity felony and a criminal history of D.
The McMillan III panel concluded that even without an explicit designation it
could tell the primary count was count one. It based this on two things: statements made
by the prosecutor and the journal entry. The panel quoted an exchange in which the
original sentencing court asked the prosecutor how it would allocate the 1,068-month
sentence it had requested between the three counts. The State responded it would
"doubl[e] Count I and then you are permitted, under [K.S.A. 21-]6818, to then double
that number. You would give a sentence of the aggravated number on each count and
then pronounce the doubling after you find—." The judge interrupted and said: "Okay.
And that will be the Order of the Court for a total sentence of 1,068 months." The
McMillan III panel also noted another statement by the prosecutor requesting the judge
sentence McMillan to 267 months on count one and 165 months on counts two and three,
run the counts consecutive, and depart up to a controlling sentence of 1,068 months.
"These statements, taken together, implied that the district court imposed a sentence of
534 months on count one and 330 months on counts two and three, as these sentences
represent double the aggravated number on each count." 2023 WL 176653, at *12. Those
sentences align with the journal entry, which designated count one as the primary count.
The panel noted the general rule is that once a count is legally designated as the
primary count it remains the primary count, even on resentencing and even if the
designation were unintended. For support, it cited the unpublished Court of Appeals
decision of State v. Hayden, No. 118,506, 449 P.3d 445 (2019) (Kan. App. 2019)
(unpublished opinion) (Hayden II). McMillan had cited Hayden II as persuasive authority
arguing it presents a factual situation comparable to the one here because in Hayden II
the sentencing judge designated a nondeparture count as the primary offense and departed
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on that count only. The appellate court ruled the departure was illegal but the count, once
designated as primary, remained the primary offense. See McMillan III, 2023 WL
176653, at *9-10.
The situation reviewed in Hayden II differs from McMillan's situation in several
significant ways, however. Unlike the facts of Hayden II, McMillan's first sentencing
judge did not pronounce the primary or base count (nor did the prosecutor in those
explicit terms), did not specify what criminal history applied to each count, and did not
pronounce the sentence as to each count. The individual sentences in Hayden II were thus
crystal clear as compared to the situation in McMillan where they are unknown and
where the prosecutor and judge made many inconsistent and ambiguous statements
causing a lack of clarity not present in Hayden II, 449 P.3d at 450.
The McMillan III panel acknowledged the lack of clarity in the record of
McMillan's original sentencing hearing. But it relied on State v. Finley, 18 Kan. App. 2d
419, 422, 854 P.2d 315 (1993), to conclude the record was sufficient to determine that
count one was the primary count. McMillan III, 2023 WL 176653, at *12. In Finley, the
defendant pleaded no contest to three counts of attempted terroristic threat. The
maximum presumptive sentence for each count was one year of imprisonment or, in the
defendant's situation, detention in the state security hospital. The district court ordered a
period of detention "'not exceed[ing] three years.'" 18 Kan. App. 2d at 420. On appeal,
the parties agreed the court apparently imposed the maximum sentence on each count.
But the defendant cited K.S.A. 21-6606(a) to argue the court must modify the journal
entry to show concurrent sentences because under that statute "[w]henever the record is
silent as to the manner in which two or more sentences imposed at the same time shall be
served, they shall be served concurrently." The Finley panel rejected the defendant's
argument after concluding the order for consecutive sentences could be implied for the
overall period of detention. 18 Kan. App. 2d at 422.
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The McMillan III panel found similarities and distinctions with Finley. 2023 WL
176653, at *12. Addressing the similarities, the McMillan III panel observed that neither
the Finley sentencing judge nor the judge who originally sentenced McMillan announced
the length of the individual sentences or whether they were to be served consecutively.
Even so, according to the panel, in both cases, the total controlling sentence implied the
terms of the individual sentences. The panel reasoned: "Based on the district court's
pronounced sentence of 1,068 months, it was implied that the district court had imposed
upward departure sentences on all three counts and ran the counts consecutively." 2023
WL 176653, at *12. Turning to the differences, the panel noted that McMillan's overall
sentence of 1,068 months did not imply the specific length of each sentence, requiring it
to rely on the individual sentences for each count that the prosecutor "seemed" to suggest.
2023 WL 176653, at *12. Despite these differences, the McMillan III panel found
sufficient clarity in the State's suggested sentences to discern the sentences.
The McMillan III panel's conclusion ignores that neither the judge nor the State
explicitly designated a primary count in their remarks. Granted, the State proposed a
sentence for count one consistent with it being the primary count. But many statements
throughout the hearing convey the State intended the primary count to be one of the
counts relating to McMillan's sons. And the only comment by the judge about a primary
count conveys he understood the departure facts applied to the counts relating to
McMillan's sons only. Thus, when the transcript is read as a whole, neither the
prosecutor's arguments nor the judge's pronouncement clearly designate the primary
count. Plus, the contradictory statements make it unclear what the State meant, much less
what the judge intended. We have a void in place of the necessary finding about which
count is the primary. That void is significant because that designation forms the
foundation for a KSGA sentence in a multiple count case. See K.S.A. 21-6819(b)(2).
This is not a unique situation, and appellate courts have sometimes filled the gap
by looking at the journal entry. That is what the McMillan III panel did as well. In doing
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so, the panel recognized the general rule that a sentence "is effective upon its
pronouncement from the bench; the filing of a formal journal entry is but a record,
evidence of what has been done. The court's order does not derive its effectiveness from
the journal entry, or from any act of the clerk; it is effective when announced." State v.
Moses, 227 Kan. 400, 402-03, 607 P.2d 477 (1980). A corollary to this rule is that the
journal entry is intended to enshrine the pronounced sentence, not correct any errors or
omissions made during its pronouncement. See State v. Hilt, 307 Kan. 112, 127-28, 406
P.3d 905 (2017).
On the other hand, we have recognized that a district court retains jurisdiction to
file a journal entry of sentencing that clarifies an ambiguous sentence pronounced from
the bench. The McMillan III panel relied on this line of cases, citing State v. Jackson,
291 Kan. 34, 36, 238 P.3d 246 (2010); State v. Garcia, 288 Kan. 761, 765-67, 207 P.3d
251 (2009); and State v. Crawford, 253 Kan. 629, 649-50, 861 P.2d 791 (1993),
abrogated on other grounds by State v. Marinelli, 307 Kan. 768, 415 P.3d 405 (2018).
2023 WL 176653, at *10. It then concluded the journal entry clarified the original
sentencing judge's intent to use count one in the complaint as the primary count and to
impose consecutive sentences.
In reaching this conclusion, the McMillan III panel recognized that it needed to
examine whether there is an "actual variance between what occurred at the hearing and
what is reflected in the journal entry memorializing the hearing." 2023 WL 176653, at
*11. The panel thus looked to the transcript to provide that clarification, emphasizing that
"the State clearly requested that the district court designate count one as the primary
offense" and, "[i]n describing how it believed McMillan should be sentenced, the State
repeatedly suggested that count one should operate as the primary offense." 2023 WL
176653, at *11. But we again note that in the portion of the transcript relied on by the
McMillan III panel, the judge interrupted the prosecutor midsentence as she was saying
17
you should "pronounce the doubling after you find—." It is those missing findings that
are key.
Also, while portions of the transcript read in isolation arguably support the
McMillan III panel's reading other portions suggest, as the McMillan II panel concluded,
that the judge intended for McMillan to "properly receive[] a 534-month sentence on the
primary crime (one of the convictions on which the jury found aggravating
circumstances)." 2021 WL 642297, at *8. Our reading of the transcript leads us to
conclude this reading is as reasonable as the McMillan III panel's reading. We thus
cannot conclude on this record that the journal entry clarified the judge's orders.
We find more support for our conclusion in inconsistent statements found in the
journal entry itself. In the departure section, the journal entry cites the two reasons found
by the jury as departure factors applying to "two of the victims." It identified those
victims as McMillan's two sons. To this extent, the journal entry provides no basis for the
departure on count one and is, at best, ambiguous rather than clarifying and, at worst,
internally inconsistent. This leads us to conclude that the lack of clarity and the ambiguity
in the statements of both counsel and the judge leave no room for confidence that the
journal entry clarified—rather than modified—the judge's order about which was the
primary count.
Vacating All Counts Was Appropriate
In sum, the overall original sentence and its component sentences violated KSGA
provisions and thus were illegal, and the McMillan II panel properly vacated all
sentences. The overall illegality of the sentence derives chiefly from the judge's failure to
explicitly assign sentences to each count and to identify the primary count, making it
impossible to definitively say what sentences the judge imposed or to hold that the
journal entry clarified rather than modified the sentence. This situation distinguishes this
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case from Abasolo, Jackson, and Garcia. Cf. Abasolo v. State, 284 Kan. 299, 306,
160 P.3d 471 (2007) (stressing that judge's statements in probation revocation hearing
were unambiguous and consistent with statutes and thus controlled over journal entry);
Jackson, 291 Kan. at 36-37 (district court clarified the sentence pronounced); Garcia,
288 Kan. at 765-66 (clarification not modification occurred). We cannot conclude which
count was the primary count, and, if it was count two, the sentence reflected in the
journal entry is an illegal sentence because it uses the wrong criminal history score. See
K.S.A. 21-6819(b)(5).
The McMillan III panel erred in concluding the sentencing court designated a
primary count and in concluding count two was not illegal and not subject to resentencing
on remand. We reverse this portion of the McMillan III opinion.
ISSUE 2: The district court on remand must consider McMillan's departure motion.
In its petition for review, the State also argues the resentencing judge lacked
jurisdiction on remand to consider McMillan's departure sentence or, in the alternative,
that the mandate rule prevented the resentencing judge from considering McMillan's
downward departure motion. These arguments present questions of law subject to our
de novo or unlimited review. See State v. Edwards, 318 Kan. 567, 570, 544 P.3d 815(2024) (jurisdiction); State v. Morningstar, 299 Kan. 1236, 1240-41, 329 P.3d 1093(2014) (interpretation of appellate court mandate and determination of whether district
court complied with it on remand).
Applying our unlimited review, we affirm the McMillan III panel and hold the
resentencing judge had jurisdiction to consider McMillan's departure motion, the mandate
rule did not preclude consideration of the motion, and the judge should have considered
the motion.
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Jurisdiction
On remand from the McMillan II decision, McMillan essentially argued the fact
his sentences were vacated brought the parties back to their original position and required
sentencing anew, including consideration of his new departure motion. But the State
counters that because the McMillan II panel did not find error or illegality relating to
McMillan's original departure motion, the resentencing judge could not consider it.
The McMillan III panel found no controlling authority. 2023 WL 176653, at *4.
But it noted that "the KSGA contemplates that both mitigating and aggravating factors
should be considered whenever a district court decides whether to impose a departure
sentence. See State v. Jolly, 301 Kan. 313, 321, 342 P.3d 935 (2015)." 2023 WL 176653,
at *4; see K.S.A. 21-6815. It also cited K.S.A. 21-6819(b)(5), which states: "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."
Finally, the panel found guidance in this court's holding in Jamerson, 309 Kan. at 218,
that on remand a resentencing judge must correct the sentence by complying with KSGA
requirements. The panel reasoned:
"This means [the district court] must apply K.S.A. 2021 Supp. 21-6815 as its starting
point in resentencing McMillan. And under that statute, the requirement that a district
court impose the presumptive sentence in a case is intertwined with its authority to grant
a departure. A district court must impose the presumptive sentence unless substantial and
compelling reasons justify a departure sentence. Because the requirement to consider if
substantial and compelling reasons supporting a departure exist is in the same provision
as the requirement to impose the presumptive sentence under the guidelines, we find a
district court can consider a departure whenever it is sentencing a defendant—including
on remand for resentencing." 2023 WL 176653, at *5.
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Before us, the State argues this holding made sense in Jamerson because, there,
the defendant was being resentenced under a different grid box than the one used during
the original sentence. Thus, the resentencing judge had to determine which number—the
mitigated, middle, or aggravated number—in the grid box to use. In contrast here,
according to the State, "correcting the illegality in defendant's sentence did not
necessitate reconsideration of defendant's downward departure motion."
We conclude the State draws a distinction without a difference, especially because
all sentences were vacated and sentencing essentially starts anew. As we have discussed,
Jamerson considered the extent to which a district court "can . . . modify multiple
sentences when only some of them are held to be illegal following a motion to correct an
illegal sentence." 309 Kan. at 212. Applying the illegal sentencing statute, the Jamerson
court also discussed what needed to happen on remand after an appellate court
determined a sentence was illegal: "Reading K.S.A. 22-3504 for the correction of an
illegal sentence and the KSGA together would logically advise that correcting an illegal
sentence should follow the same statutory rules as resentencing after a remand." 309 Kan.
at 216.
Extending the Jamerson rule here, a district court has jurisdiction on remand for
resentencing to consider the existence of aggravating or mitigating factors consistent with
the KSGA after an appellate court vacates a sentence and remands for a resentencing. We
add that McMillan presented a new motion, arguing new factors, so the original
sentencing judge's findings did not cover all facets of the motion. Both the original and
new motion put into play the language of the KSGA stating that a "sentencing judge shall
impose the presumptive sentence provided by the sentencing guidelines unless the judge
finds substantial and compelling reasons to impose a departure sentence." K.S.A. 21-
6815(a). In a case involving a multiple count sentence, if an appellate court holds the
sentences are illegal and vacates all sentences and thus new sentences need to be
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imposed, the KSGA opens the door to consideration of departure issues the defendant
may raise. Jurisdiction exists.
Mandate Rule
The resentencing judge seemed mostly concerned about the mandate rule and
whether that constrained his consideration of the departure motion. The State also argues
the McMillan II panel's mandate precluded consideration of McMillan's motion.
K.S.A. 20-108 and K.S.A. 60-2106(c) discuss the effect of the mandate. K.S.A.
20-108 requires district courts "to carry the judgment or decree of the appellate court into
execution; and the same shall be carried into execution by proper proceedings, by such
district court, according to the command of the appellate court made therein." Similarly,
K.S.A. 60-2106(c) states that an appellate court's mandate "shall be controlling in the
conduct of any further proceedings necessary in the district court."
As explained in State v. Soto, 310 Kan. 242, 252, 445 P.3d 1161 (2019), these
statutes "enforce the hierarchy of Kansas courts, ensuring that appellate orders [are]
not . . . ignored by lower courts. They were not designed to set up broad limits on subject
matter jurisdiction once a case was remanded." In other words, "To the extent an
appellate court has spoken, the district court must listen and, as required, act." 310 Kan.
at 252. The mandate rule thus incorporates preclusion principles by preventing district
courts from acting contrary to points finally settled by appellate courts. But the statutes
do not prohibit district courts from taking other steps necessary to dispose of the case.
"Such issues may have been allocated for decision in the district court in the first place
and then untouched by appellate proceedings." 310 Kan. at 256.
We understand the resentencing judge's reading of McMillan II as setting out
parameters for resentencing. But the panel did not address the departure motion, much
22
less the renewed departure motion filed on remand. The motion thus falls into the
category Soto referred to as a matter "untouched by appellate proceedings." 310 Kan. at
256. Thus, the mandate rule did not preclude the resentencing judge's consideration of
McMillan's departure motion raised after remand to correct an illegal sentence. The
KSGA would allow the imposition of the presumptive sentence set out by the McMillan
II panel only if the judge did not find substantial and compelling reasons to depart.
K.S.A. 21-6815. Further, because this case involved a complete resentencing on remand
after all counts had been vacated, the McMillan II holding opened the door for sentencing
anew, and the mandate rule did not prevent the resentencing judge from considering
McMillan's departure motion.
We finally note that no party briefed whether the law of the case or any other
preclusive doctrine means the McMillan III panel should have accepted the McMillan II
order that vacated the sentences or whether those doctrines would change our analysis
about consideration of the departure motion. The law-of-the-case doctrine "prevents a
party from relitigating an issue already decided on appeal in successive stages of the
same proceeding." State v. Parry, 305 Kan. 1189, 1194, 390 P.3d 879 (2017). While an
appellate court may raise questions of preclusion sua sponte, see Parry, 305 Kan. at 1194,
we decline to do so without having permitted the parties to brief the various doctrines'
application on a motion for illegal sentence—a motion that can be raised at any time. We
raise the point only to explain why it is not addressed and to caution that our holdings do
not account for the effect those doctrines might have on the issues.
CONCLUSION
McMillan suffered two rounds of flawed sentencing. The first round failed to
designate a primary crime and failed to specify sentencing terms for each count. The
second round did not begin anew by considering McMillan's departure motion or other
considerations in K.S.A. 21-6815. We vacate McMillan's sentences and remand to the
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district court for sentencing anew after considering any departure or other motion, the
parties' arguments, and relevant provisions of the KSGA.
Judgment of the Court of Appeals vacating the judgment of the district court is
affirmed in part and reversed in part. Judgment of the district court is vacated, and the
case is remanded with directions.
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