State v. Bott ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 120,970
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
AUSTIN RAY BOTT,
Appellant.
MEMORANDUM OPINION
Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed June 26, 2020.
Remanded with directions.
Kristen B. Patty, of Wichita, for appellant.
Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before GARDNER, P.J., WARNER, J., and ROBERT J. WONNELL, District Judge, assigned.
PER CURIAM: On October 17, 2018, Austin Ray Bott pleaded guilty to kidnapping
and aggravated robbery in exchange for dismissal of other charged conduct. The district
court accepted his guilty plea.
Factual and Procedural Background
On December 11, 2018, the district court sentenced Bott to 116 months'
imprisonment and 36 months' postrelease supervision. Bott timely appealed. Although
the journal entry reflected that "[f]or each count, the Court pronounced the complete
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sentence, including the maximum potential good time percentage," the district court did
not discuss good time at the sentencing hearing. We find that a complete sentence was
not pronounced and remand with instructions.
Jurisdiction
As a preliminary matter, the State argues that this court does not have jurisdiction
to review Bott's claim because he received a presumptive sentence under the Kansas
Sentencing Guidelines Act (KSGA). As the State correctly points out, the KSGA
provides that appellate courts lack jurisdiction to review a sentence that is presumptive or
that is the result of a plea agreement. See K.S.A. 2019 Supp. 21-6820(c). Here, Bott's
sentence was both presumptive and the result of a plea agreement.
However, the statutory preclusion preventing this court from reviewing a
presumptive sentence, or one that is the result of a plea agreement, must be read in
conjunction with this court's authority to correct an illegal sentence at any time. See
K.S.A. 2019 Supp. 22-3504(a). The Kansas Supreme Court in State v. Quested, 302 Kan.
262, 264, 352 P.3d 553 (2015), addressed a similar lack of jurisdiction argument by the
State and found that the fact that the defendant received a sentence that was the result of a
plea agreement did not bar an illegal sentence claim, stating: "This court has reconciled
the two statutes by holding that an appellate court has jurisdiction to correct an illegal
sentence even if it was agreed to in a plea." See also State v. Shull, 52 Kan. App. 2d 981,
986, 381 P.3d 499 (2016) ("th[e] statutory limitation [in K.S.A. 21-6820(c)(2)] on
appellate jurisdiction does not preclude appellate review of a claim of an illegal
sentence").
Here, Bott argues that the sentence as pronounced was illegal. An illegal sentence
is one "[i]mposed by a court without jurisdiction; that does not conform to the applicable
statutory provision, either in character or punishment; or that is ambiguous with respect
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to the time and manner in which it is to be served at the time it is pronounced." K.S.A.
2019 Supp. 22-3504(c)(1). Therefore, this court has jurisdiction to review Bott's claim
regarding the imposition of an illegal sentence.
Standard of Review
A court can correct an illegal sentence at any time while the defendant is serving
such sentence. K.S.A. 2019 Supp. 22-3504(a). Whether a sentence is illegal and issues
involving statutory interpretation are both questions of law subject to unlimited review.
State v. Fowler, 311 Kan. 136, 139, 457 P.3d 927 (2020).
Did the District Court's Failure to State the Maximum Potential Good Time Reduction at
Bott's Sentencing Hearing Render His Sentence Illegal?
Relying on K.S.A. 2019 Supp. 21-6804(e)(2) and State v. Arrocha, 42 Kan. App.
2d 796, 217 P.3d 467 (2009), Bott argues the district court's failure to pronounce the
maximum potential good time reduction renders his sentence incomplete and thus illegal.
The State argues that Bott's sentence is not ambiguous because the maximum
amount of good time credit he could receive is controlled by statute and thus the district
court's failure to pronounce it at sentencing "has no impact on Bott's sentence." The State
also argues the "shall" in K.S.A. 2019 Supp. 21-6804(e)(2), relating to the maximum
good time credit, should be read as discretionary, not mandatory. The State then asserts
that this case is distinguishable from Arrocha. The State concludes by stating it has no
"strong" objection to the case being remanded, but it does not see the necessity.
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Analysis
It is undisputed that the district court failed to pronounce the maximum potential
good time reduction at Bott's sentencing hearing. Additionally, neither party contests that
Bott is entitled to a potential good time reduction and to be present at the imposition of
sentence.
The sentencing court shall pronounce the sentence in all felony cases. K.S.A. 2019
Supp. 21-6806(b). K.S.A. 2019 Supp. 21-6804(e)(2) then clearly states what is required
during pronouncement:
"In presumptive imprisonment cases, the sentencing court shall pronounce the
complete sentence which shall include the:
(A) Prison sentence;
(B) maximum potential reduction to such sentence as a result of good time; and
(C) period of postrelease supervision at the sentencing hearing. Failure to
pronounce the period of postrelease supervision shall not negate the existence of such
period of postrelease supervision."
Thus, by the statute's plain language, a "complete sentence" requires the district court to
pronounce the prison sentence, the maximum potential reduction to a sentence based on
good time, and the period of postrelease supervision.
The State acknowledges this provision but argues that the "shall" requiring the
district court to pronounce the maximum potential good time reduction should be read as
discretionary. The statutory language does not support such a contention. The "shall"
applies to all three subsections, including the pronouncement of the prison sentence and
the period of postrelease supervision; and Kansas caselaw has determined that failure to
pronounce the period of postrelease supervision at the sentencing hearing results in an
incomplete sentence that requires resentencing. See, e.g., Arrocha, 42 Kan. App. 2d at
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798; State v. Rolls, No. 119,107, 2019 WL 6224398, at *5 (Kan. App. 2019)
(unpublished opinion).
In Arrocha, the defendant advanced a similar incomplete sentence argument but
relied on the district court's failure to pronounce the postrelease supervision period at
sentencing. See 42 Kan. App. 2d at 797. The Arrocha panel cited K.S.A. 1999 Supp. 21-
4704(e)(2)—the previous version of K.S.A. 2019 Supp. 21-6804(e)(2)—which stated that
a sentencing court must pronounce "'the complete sentence, which shall include the
prison sentence, the maximum potential reduction to such sentence as a result of good
time and the period of postrelease supervision.'" 42 Kan. App. 2d at 798. The panel found
that by failing to pronounce the postrelease supervision period at the sentencing hearing,
the district court failed to pronounce a complete sentence as required by law. The panel
then stated that a defendant has a right to be present at sentencing, and a sentence
imposed in the journal entry but not at the hearing effectively violated that right. Thus,
the panel remanded the case for the district court to impose a complete sentence at a
sentencing hearing in the defendant's presence. 42 Kan. App. 2d at 798.
The same rationale applies to the case at bar. The direction contained in K.S.A.
2019 Supp. 21-6804(e)(2) mandates the district court to pronounce a complete sentence,
and the maximum potential good time reduction is part of the complete sentence. Thus,
by failing to announce the maximum potential good time reduction at the sentencing
hearing, the district court did not pronounce a complete sentence.
In addition, for failing to comply with the statutory requirements, the failure to
pronounce the good time credit rendered the sentence ambiguous with respect to the time
of service. A sentence that is not orally pronounced in open court is ambiguous with
respect to the time and manner in which it is to be served. Rolls, 2019 WL 6224398, at
*5. The inclusion of the good time credit in the journal entry does not correct this error. A
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sentence derives its effectiveness from the pronouncement, not the journal entry. See
Abasolo v. State, 284 Kan. 299, Syl. ¶ 3, 160 P.3d 471 (2007).
The State then argues that even if the district court did not pronounce a complete
sentence, the failure does not affect Bott because the district court has no discretion in
setting the maximum potential good time reduction. The State is correct that Bott can
only receive up to a 15% reduction based on his crimes of conviction. See K.S.A. 2019
Supp. 21-6821(b)(2). However, simply because the district court does not have discretion
in determining the amount of the potential good time reduction, does not mean that the
district court's failure to pronounce it has no effect on Bott. The district court is required
by law to pronounce a complete sentence in the defendant's presence. K.S.A. 2019 Supp.
21-6804(e)(2); K.S.A. 2019 Supp. 22-3405. Therefore, the failure to pronounce a
complete sentence affects Bott's right to hear his complete sentence in his
pronouncement. It is a common law and statutory right to be present and to personally
hear the pronouncement of one's criminal sentence. See State v. Fennell, 218 Kan. 170,
176-77, 542 P.2d 686 (1975); K.S.A. 2019 Supp. 22-3405.
Finally, the State argues that a resentencing hearing would be "costly" and
"unnecessary," but it has no "strong" objection if Bott wants to hear his complete
sentence. Our analysis is not governed by whether the effect of this court's order results
in an increase in transportation costs, but whether a defendant was denied a common law
and statutory right to hear his complete sentence. We find that he was, and the matter is
remanded with instructions for the district court to pronounce a complete sentence in
Bott's presence.
Remanded with directions.
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