State v. Vaughn ( 2020 )

No. 121,340
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
REX C. VAUGHN,
Appellant.
SYLLABUS BY THE COURT
1.
A district court sentencing a defendant for a new felony committed while on
felony bond under K.S.A. 2019 Supp. 21-6606(d) may impose a nonprison sanction or a
prison sanction, even though the new crime of conviction otherwise presumes a
nonprison sentence. If a prison sentence is imposed, that sentence must be consecutive
unless the defendant shows manifest injustice.
Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed August 14, 2020.
Affirmed.
Kasper Schirer, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before SCHROEDER, P.J., HILL and GARDNER, JJ.
GARDNER, J.: Rex C. Vaughn pleaded guilty to possession of methamphetamine
with intent to distribute—a crime he committed while on felony bond for a previous
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crime. The district court ruled that special sentencing rules required it to impose the new
prison sentence consecutively to Vaughn's previous sentence. Vaughn appeals his
sentence, arguing that the district court erred by applying the wrong legal standard
because the district court had the discretion to sentence him concurrently. Disagreeing,
we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2019, Vaughn pleaded guilty to possession of methamphetamine with intent to
distribute, in violation of K.S.A. 2019 Supp. 21-5705(a)(l), (d)(3)(C). Because Vaughn
committed this crime while on felony bond for a previous felony (forgery and burglary in
Saline County), the district court found that Special Rule 10 applied to his new sentence.
That special rule required the district court to impose the new sentence consecutively to
his previous sentence. Vaughn's was not a multiple sentencing case—one that imposes
two or more sentences on the same day.
Before sentencing, Vaughn moved for a durational departure of 74 months in
prison and the State agreed to recommend this sentence. At sentencing, Vaughn's defense
counsel acknowledged the special rule but argued that the manifest injustice exception to
that rule applied. Vaughn asked the district court to run the sentences concurrently
because he was already serving a long time in his other cases. The State countered that a
manifest injustice finding was not appropriate under the circumstances.
The district court agreed with the State:
"Regrettably, the Court declines to find manifest injustice that would support the
concurrent sentence with the Saline County case. Like I said, this is more than an
addiction for you. This enables—this crime enables the addiction of so many others and
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causes so much heartbreak in our community. So I will not find that there is manifest
injustice. I will run the case consecutively."
The district court granted a durational departure, imposing a 74-month prison
sentence consecutive to all prior cases, and a 36-month postrelease supervision term.
Vaughn appeals.
DID THE DISTRICT COURT ERR IN SENTENCING THE DEFENDANT?
On appeal, Vaughn argues solely that the district court erred by applying the
wrong legal standard under K.S.A. 2019 Supp. 21-6606(d) and running his sentence
consecutively. Vaughn contends that the district court had the discretion to sentence him
concurrently and that the district court erred in finding that it did not. Although Vaughn
did not raise this issue below, an exception applies which permits us to address the issue
for the first time on appeal—a newly asserted theory that involves only a question of law
that arises on proved or admitted facts and determines the case. See State v. Phillips, 299
Kan. 479, 493, 325 P.3d 1095 (2014).
The district court applied K.S.A. 2019 Supp. 21-6606(d) in sentencing Vaughn
consecutively. Its terms are mandatory: "Any person who is convicted and sentenced for
a crime committed while on release for a felony pursuant to article 28 of chapter 22 of the
Kansas Statutes Annotated, and amendments thereto, shall serve the sentence
consecutively to the term or terms under which the person was released." K.S.A. 2019
Supp. 21-6606(d). This statute forms the basis for Special Rule 10.
The Legislature provided an exception to this rule in K.S.A. 2019 Supp. 21-
6819(a)—a district court shall not impose a mandatory consecutive sentence if manifest
injustice will result. But Vaughn does not contend that this manifest injustice exception
applies. Although Vaughn argued manifest injustice at his sentencing hearing, the district
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court found that the circumstances did not warrant such a finding, and Vaughn does not
challenge that finding on appeal.
Vaughn argues only that the judge had the discretion to sentence him to a
concurrent sentence, citing K.S.A. 2019 Supp. 21-6604(f)(4). Vaughn's argument is
threefold. First, he contends that the terms of this statute, which also apply when a
defendant commits a crime while on felony bond, make a consecutive sentence
permissive, not mandatory.
Second, Vaughn argues that K.S.A. 2019 Supp. 21-6604(f)(4) and K.S.A. 2019
Supp. 21-6606(d) are contradictory because both refer to the imposition of consecutive
sentences for offenders on felony bond, yet one uses "may" and the other uses "shall."
Third, Vaughn relies on the rule of lenity that applies to conflicting statutes. See
State v. Horn, 288 Kan. 690, 693, 206 P.3d 526 (2009) ("Where the legislature fails to
manifest a clear legislative intent by permitting the existence of conflicting statutory
provisions, the rule of lenity must be considered."). The rule of lenity requires this court
to adopt the interpretation of a criminal statute most favorable to the defendant when
presented with two reasonable and sensible interpretations of that statute. State v. Collins,
303 Kan. 472, 476, 362 P.3d 1098 (2015). Under this rule, the interpretation most
favorable to Vaughn is that a new sentence for felons who commit new crimes while on
felony bond may be imposed concurrently.
Vaughn also contends that canons of construction dictate that K.S.A. 2019 Supp.
21-6604(f)(4) controls because K.S.A. 2019 Supp. 21-6606(d) applies only when the
defendant is receiving two sentences on the same day—Vaughn received only one
sentence on his sentencing date. Vaughn argues that "K.S.A. 21-6606(d) merely grants
authority for the court to impose a consecutive sentence under K.S.A. 21-6604(f)(4)." As
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a result, Vaughn argues that the district court had discretion to impose a concurrent
sentence without making a manifest injustice finding.
The State responds that K.S.A. 2019 Supp. 21-6604(f)(4) and K.S.A. 2019 Supp.
21-6606(d) do not conflict: "The seemingly contradictory language from K.S.A. 21-
6604(f)(4) is in fact not contradictory as it applies only to authorize a prison sentence
while deferring to K.S.A. 21-6606 for the mandatory consecutive nature of said
sentence." As we explain below, we agree with the State's position.
ANALYSIS
"[S]tatutory interpretation is a question of law subject to unlimited review." State
v. Buell, 307 Kan. 604, 606, 412 P.3d 1004 (2018). We apply the traditional principles of
statutory interpretation:
"'The most fundamental rule is that the intent of the legislature governs if that
intent can be ascertained. An appellate court must first attempt to ascertain legislative
intent through the statutory language enacted, giving common words their ordinary
meanings. When a statute is plain and unambiguous, an appellate court does not speculate
as to the legislative intent behind it and will not read into the statute something not
readily found in it. Where there is no ambiguity, the court need not resort to statutory
construction. Only if the statute's language or text is unclear or ambiguous does the court
use canons of construction or legislative history or other background considerations to
construe the legislature's intent.' [Citations omitted.]" City of Dodge City v. Webb, 305
Kan. 351, 356, 381 P.3d 464 (2016).
In interpreting K.S.A. 2019 Supp. 21-6604(f)(4), we must examine the statutory
scheme considering "various provisions of an act in pari materia with a view to
reconciling and bringing the provisions into workable harmony, if possible." State v.
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Coman, 294 Kan. 84, 93, 273 P.3d 701 (2012); State v. Cole, 238 Kan. 370, Syl. ¶ 1, 710
P.2d 25 (1985). As a result, we do not read this statute in isolation.
The language of the statutes
We begin with the plain language of the statutes. Vaughn asserts K.S.A. 2019
Supp. 21-6604(f)(4) controls, permitting the court to sentence him consecutively or
concurrently:
"When a new felony is committed while the offender is on release for a felony pursuant
to the provisions of article 28 of chapter 22 of the Kansas Statutes Annotated, and
amendments thereto, or similar provisions of the laws of another jurisdiction, a new
sentence may be imposed consecutively pursuant to the provisions of K.S.A. 21-6606, and
amendments thereto, and the court may sentence the offender to imprisonment for the
new conviction, even when the new crime of conviction otherwise presumes a nonprison
sentence. In this event, imposition of a prison sentence for the new crime does not
constitute a departure." (Emphasis added.) K.S.A. 2019 Supp. 21-6604(f)(4).
Vaughn alleges that the statute above conflicts with the one below:
"Any person who is convicted and sentenced for a crime committed while on
release for a felony pursuant to article 28 of chapter 22 of the Kansas Statutes Annotated,
and amendments thereto, shall serve the sentence consecutively to the term or terms
under which the person was released." (Emphasis added.) K.S.A. 2019 Supp. 21-6606(d).
We first examine K.S.A. 2019 Supp. 21-6604(f)(4). Its introductory clause—the
language preceding "a new sentence"—describes the kind of felon to which the statute
applies. Vaughn fits within that language, as both parties agree that Vaughn committed a
new felony while he was on felony bond. So we set that clause aside.
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The rest of subsection (f)(4) speaks to what the court may do when that
introductory clause is met—"a new sentence may be imposed consecutively pursuant to
the provisions of K.S.A. 2019 Supp. 21-6606." K.S.A. 2019 Supp. 21-6604(f)(4). The
meaning of the subsection becomes clearer when we read its language in the active,
instead of in the passive, voice. So instead of the passive "a new sentence may be
imposed," the active voice says, "the court may impose a new sentence." Logically, this
means that the court may or may not impose a new prison sentence. It has the discretion
to do either. "May," as a helping verb, works as part of the verb "impose," not with the
adverb "consecutively." When construing a statute, we apply the rules of English
grammar.
We move on. If the court opts to impose a new prison sentence, how does it do
that? It does so "consecutively pursuant to the provisions of K.S.A. 2019 Supp. 21-6606."
K.S.A. 2019 Supp. 21-6604(f)(4). Consecutively is an adverb, modifying the verb
"impose," or the verb phrase "may impose." Read together, this clause restricts the earlier
portion of the sentence: "a new sentence may be imposed consecutively." The rest of the
subsection is written in the active voice. It states, "the court may sentence the offender to
imprisonment for the new conviction" even if the new crime is presumptive nonprison.
K.S.A. 2019 Supp. 21-6604(f)(4). That language underscores that the focus of K.S.A.
2019 Supp. 21-6604(f)(4) is on what the court is authorized to do. This is consistent with
the statute's heading, "Authorized dispositions."
We then look to "the provisions of K.S.A. 21-6606," as K.S.A. 2019 Supp. 21-
6604(f)(4) requires that "a new sentence may be imposed consecutively pursuant to the
provisions of K.S.A. 21-6606." The focus of the language in K.S.A. 21-6606 is not on
what a court is authorized to do. Rather, the focus is on what sentence the recidivistic
felon must serve. This statute has multiple subsections, one of which directly applies to
Vaughn. But we must first briefly address four other subsections, as they paint the full
picture.
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K.S.A. 2019 Supp. 21-6606(a) addresses multiple sentences—when a court
imposes separate sentences of imprisonment on the same date for a defendant's different
crimes. Such sentences "shall run concurrently or consecutively as the court directs."
K.S.A. 2019 Supp. 21-6606(a). If the court fails to direct, and the record is silent as to
how two or more sentences imposed at the same time shall be served, they shall be served
concurrently, "except as otherwise provided in subsections (c), (d) and (e)." K.S.A. 2019
Supp. 21-6606(a). Subsection (a) does not apply here because Vaughn did not receive
multiple sentences—his sentences were on different dates. And, the record is not silent as
to how Vaughn was to serve his sentence—the district court stated it was consecutive.
Nor does subsection (b) apply. Subsection (b) provides that persons convicted and
sentenced for a crime committed while on probation, assignment to a community
correctional services program, parole, or conditional release for a misdemeanor shall
serve the sentence concurrently or consecutively, as the court directs. K.S.A. 2019 Supp.
21-6606(b). Vaughn was on bond for a felony.
The next three subsections of K.S.A. 2019 Supp. 21-6606 require consecutive
sentences for certain repeat felons, including Vaughn:
"(c) Any person who is convicted and sentenced for a crime committed while on
probation, assigned to a community correctional services program, on parole, on
conditional release or on postrelease supervision for a felony shall serve the sentence
consecutively to the term or terms under which the person was on probation, assigned to
a community correctional services program or on parole or conditional release.
"(d) Any person who is convicted and sentenced for a crime committed while on
release for a felony pursuant to article 28 of chapter 22 of the Kansas Statutes Annotated,
and amendments thereto, shall serve the sentence consecutively to the term or terms
under which the person was released.
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"(e)(1) Any person who is convicted and sentenced for a crime committed while
such person is incarcerated and serving a sentence for a felony in any place of
incarceration shall serve the sentence consecutively to the term or terms under which the
person was incarcerated."
These three sections show "a clear legislative intent to cover the waterfront and to
require consecutive sentences where a defendant commits a felony while released on
bond in a prior felony case, whether at the beginning of the prosecution prior to trial or at
the end of the trial or after the defendant has been sentenced or after defendant is placed
on probation or parole or conditional release or while incarcerated." State v. Reed, 237
Kan. 685, 688, 703 P.2d 756 (1985) (examining the predecessor statute, K.S.A. 1984
Supp. 21-4608[3], [4], and [5]).
Subsection (d) applies to Vaughn, independently of subsection (a), which does not
apply here. It requires that "[a]ny person who is convicted and sentenced for a crime
committed while on release for a felony pursuant to article 28 of chapter 22 of the Kansas
Statutes Annotated, and amendments thereto, shall serve the sentence consecutively to
the term or terms under which the person was released." K.S.A. 2019 Supp. 21-6606(d).
Vaughn was convicted and sentenced for a crime committed while on release for a felony
pursuant to article 28 of chapter 22 of the Kansas Statutes Annotated. So, for that new
crime, he "shall serve the sentence consecutively." K.S.A. 2019 Supp. 21-6606(d). The
court has no discretion to sentence Vaughn concurrently.
Vaughn argues that subsection (d) relates only to multiple sentences and is a
subset of subsection (a). But he concedes that position is contrary to our cases which
examined the predecessor statute to K.S.A. 2019 Supp. 21-6606—K.S.A. 21-4608. See
State v. Christensen, 23 Kan. App. 2d 910, 937 P.2d 1239 (1997), disapproved of on
other grounds by State v. Bolin, 266 Kan. 18, Syl. ¶ 3, 968 P.2d 1104 (1998); State v.
LaGrange, 21 Kan. App. 2d 477, 901 P.2d 44 (1995), abrogated by State v. Rodriguez,
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305 Kan. 1139, 390 P.3d 903 (2017); State v. Owens, 19 Kan. App. 2d 773, 875 P.2d
1007 (1994). He admits our Supreme Court has rejected that reasoning as well, citing
State v. Edwards, 252 Kan. 860, 870, 852 P.2d 98 (1993) (finding subsection [1] is "a
specific statute applied when all involved sentences occur, as here, on the same date and
take precedence over subsection [3] of [K.S.A. 1992 Supp. 21-4608]"). Vaughn argues
that these cases were wrongly decided, yet we have no ability to overturn a Supreme
Court case, when, as here, we have no indication it is changing its position. State v.
Rodriguez, 305 Kan. 1139, 1144390 P.3d 903 (2017) (Kansas courts are "duty bound to
follow Kansas Supreme Court precedent absent indication Supreme Court is departing
from previous position.").
Vaughn asserts that subsection (a), relating to multiple sentences, restricts the
subsections that follow, including subsection (d). But the plain language of the statute is
not structured that way—each subsection from (a) through (d) addresses a different
factual situation. And subsection (a), relating to multiple sentences, expressly defers to
subsection (d) in its exception. That exception states if 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, except as otherwise provided in subsections (c), (d) and
(e)." (Emphasis added.) K.S.A. 2019 Supp. 21-6606(d). Subsections (c), (d), and (e) each
require consecutive sentences. So even if a defendant commits multiple new felonies
while on felony bond and the court imposes multiple sentences yet fails to state whether
those sentences are concurrent or consecutive, subsection (d) requires the defendant to
serve those sentences consecutively, despite subsection (a)'s general rule that when the
record is silent two or more sentences imposed at the same time shall be served
concurrently. Vaughn did not have two or more sentences imposed at the same time, so
subsection (a) does not apply to him. Subsection (d) does.
These two statutes, K.S.A. 2019 Supp. 21-6604(f)(4) and K.S.A. 2019 Supp. 21-
6606(d), do not conflict. Rather, they are harmonious. The Legislature intended for them
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to be read together, as K.S.A. 2019 Supp. 21-6604(f)(4)'s reference to "the provisions of
K.S.A. 2019 Supp. 21-6606" confirms. This natural reading of the statutes makes sense.
A district court which chooses to impose a new sentence on a defendant such as Vaughn
must do so "consecutively pursuant to the provisions of K.S.A. 2019 Supp. 21-6606."
K.S.A. 2019 Supp. 21-6604(f)(4). It has no discretion to do otherwise. See Reed, 237
Kan. at 687-88 (finding mandatory consecutive sentences were required under the
predecessor statute to K.S.A. 2019 Supp. 21-6606[d]—K.S.A. 1984 Supp. 21-4608[4]—
because Reed committed two felonies after being released on felony bond pending trial in
the first case).
In contrast, Vaughn's interpretation of K.S.A. 2019 Supp. 21-6604(f)(4) makes no
sense. Vaughn interprets "may" as modifying "consecutively." He thus reads the
operative language in this statute to mean: "a new sentence may be imposed
consecutively or concurrently pursuant to the provisions of K.S.A. 2019 Supp. 21-6606."
But that adds language to the subsection, which says nothing about concurrent sentences.
See State v. Ardry, 295 Kan. 733, 737, 286 P.3d 207 (2012) (it is not for an appellate
court to add to or delete vital language from a statute). And a concurrent sentence for a
defendant like Vaughn (who is sentenced for a felony on one date and then commits
another felony while on felony bond) is impossible "pursuant to the provisions of K.S.A.
2019 Supp. 21-6606." (Emphasis added.) K.S.A. 2019 Supp. 21-6604(f)(4). For that kind
of repeat felon, the only applicable subsection in K.S.A. 2019 Supp. 21-6606 is (d),
which mandates that the defendant "shall serve the sentence consecutively." So no
concurrent sentence could be imposed pursuant to any provision of K.S.A. 2019 Supp.
21-6606 for Vaughn or similarly situated felons. Our interpretation, unlike Vaughn's,
meets our duty to "construe a statute to avoid unreasonable or absurd results." State v.
Arnett, 307 Kan. 648, 654, 413 P.3d 787 (2018).
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The legislative history
Vaughn argues that certain testimony during legislative hearings in 1999 about the
amendment to K.S.A. 21-4603d(f) "leaves no doubt that the Legislature intended district
court judges to have discretion to run sentences either concurrently or consecutively
when a new offense is committed while on felony bond." He cites testimony by Judge
(now Chief Justice) Luckert, the Kansas Attorney General, and the Kansas District
Judges' Association (KDJA).
Individual testimony during legislative sessions is rarely conclusive as to the
Legislature's collective intent. See, e.g., State ex rel. SRS v. Bohrer, 286 Kan. 898, 911,
189 P.3d 1157 (2008) (finding contradictory comments tell us "very little about what the
legislature actually believed when it enacted the statutes"). At any rate, we review the
documents Vaughn has attached to his brief. Although we do not agree that the statute's
language is ambiguous, neither is it a model of clarity. So we consider legislative history.
See Nauheim v. City of Topeka, 309 Kan. 145, 149-50, 432 P.3d 647 (2019). It shows us
that the issue before the Legislature was the court's power to sentence felons like Vaughn
to prison instead of presumptive probation and had nothing to do with concurrent versus
consecutive sentences.
Judge Luckert's testimony in support of the bill stated only that "[i]t would allow
the sentencing judge to impose a sentence [to] be served consecutively for a new crime
that was committed while he was on bond for the original crime." Nothing in her
statement suggested that the bill would give the sentencing judge discretion to sentence
such a defendant concurrently.
Similarly, Attorney General Stovall's letter submitted in support of the bill
contained no language favorable to Vaughn's position. Instead, it stated that the bill
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"will allow a judge the discretion to impose imprisonment on a criminal defendant who
commits a new felony while on bond for a felony offense. . . . This bill simply provides
the court with discretion to impose a sentence of imprisonment on a defendant who
commits a new felony while on bond for committing a felony, with the result that the
sentence is not considered a departure.
....
"This bill merely grants the court the discretion to impose a prison sentence
without it constituting a departure in a clearly essential situation."
The letter did not suggest that the district court would have any discretion to impose a
concurrent sentence on such a defendant.
Neither did the testimony of the KDJA. It urged support of the bill, stating, "[t]he
amendment would allow a sentencing judge to . . . sentence a defendant to prison to serve
a sentence consecutive to another sentence if an offender commits a felony while released
on bond before trial or sentencing in another case."
The KDJA referred to the use of the word "may" in concluding:
"Kansas district judges have experienced cases where the judge felt that a prison
sanction was appropriate when the defendant committed a new crime while on bond
awaiting sentencing in another case. A defendant's conduct while on bond is often a good
indicator of the defendant's ability to abide by the conditions of probation. However,
there are also circumstances where the nonprison sanction remains inappropriate. Thus,
the Kansas District judges urge your support for the language which states that a
defendant may be sentenced consecutively for a new crime committed while on bond.
The Kansas District Judges also support the amendment which would allow the
imposition of a prison sanction even if the crime might otherwise be presumptive
probation."
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This language explains that the "may" gives the sentencing court the option to sentence a
defendant in Vaughn's position to a prison or a nonprison sanction, because "there are
also circumstances where the nonprison sanction remains inappropriate." Thus, the
KDJA's testimony cuts against Vaughn's contrary view that the word "may" permits a
court to sentence him concurrently under this subsection of the statute.
The Legislature enacted K.S.A. 21-6604(f)(4), not to give courts discretion as to
whether to sentence repeat felons like Vaughn concurrently or consecutively, but to give
courts the power to sentence such defendants to imprisonment even when the new crime
of conviction otherwise presumes a nonprison sentence. That is the thrust of the
testimony above. And that is the issue that sparked enactment of this subsection, as we
explain below.
When enacted in 1993, K.S.A. 21-4603d, the precursor to K.S.A. 21-6604(f), did
not include language about defendants such as Vaughn, who committed a new felony
while on felony bond. Rather, it stated:
"When a new felony is committed while the offender is incarcerated and serving a
sentence for a felony or while the offender is on probation, assignment to a community
correctional services program, parole, conditional release, or postrelease supervision for a
felony, a new sentence shall be imposed pursuant to the consecutive sentencing
requirements of K.S.A. 21-4608, and amendments thereto, and the court may sentence
the offender to imprisonment for the new conviction, even when the new crime of
conviction otherwise presumes a nonprison sentence. In this event, imposition of a prison
sentence for the new crime does not constitute a departure." K.S.A. 1993 Supp. 21-
4603d(a); see L. 1993, ch. 165, § 1.
The Kansas Supreme Court held that this language excluded defendants such as
Vaughn, who committed a new felony while on felony bond. State v. Arculeo, 261 Kan.
286, 293, 933 P.2d 122 (1997). Arculeo committed a new felony while released on bond
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pending sentence in a prior felony case, as did Vaughn. Although the KSGA provided a
presumptive nonprison sentence for his new crime, the district court sentenced him to
prison. The district court found that Arculeo was on "conditional release" when he
committed the new crime, fitting him within that term in the statute above.
The Kansas Supreme Court reversed, finding that K.S.A. 21-4603d did not include
persons released for a felony under article 28, chapter 22, and inviting the Legislature to
amend the statute if it desired that result:
"The present statute we now consider, K.S.A. 21-4603d, does not contain the
language relied on in Reed to cover a defendant released on bond. Notably absent from
K.S.A. 21-4603d is the language contained in K.S.A. 21-4608(d), which specifically
refers to article 28 of Chapter 22 of the Kansas Statutes Annotated and specifically covers
a case like the one in this appeal where the new felony is committed while the defendant
is on bond awaiting sentences in prior felonies. Had the legislature wanted an accused
charged with a new crime while released on bond for a prior felony to be covered under
the provisions of K.S.A. 21-4603d authorizing imposition of a prison sentence when the
new crime of conviction otherwise presumes a nonprison sentence, it could have added
the language contained in K.S.A. 21-4608(d).
"We hold that a defendant who at the time of sentencing for a new felony had
been released on bond pending sentence in a prior felony case, is not on conditional
release as that term is used in K.S.A. 21-4603d. We further hold that the statutory
provision in K.S.A. 21-4603d authorizing a court to sentence an offender to
imprisonment for a new conviction even when the new crime of conviction otherwise
presumes a nonprison sentence, does not apply to the defendant in this case, who
committed a new felony while on bond pending sentence in a prior felony case."
(Emphasis added.) Arculeo, 261 Kan. at 293.
So a district court lacked the authority to sentence repeat felons such as Vaughn to
imprisonment for a new conviction presumed to be a nonprison sentence, even though the
sentencing statute ("the language contained in K.S.A. 21-4608[d]," now K.S.A. 21-
15
6606[d]) then, as now, required a felon released on bond who committed a new felony to
serve a consecutive sentence. See 261 Kan. at 293.
The Legislature responded to Arculeo by doing exactly what the Supreme Court
invited it to do, granting courts that power. It amended K.S.A. 21-4603d in 1999 to add
language specific to felons such as Arculeo and Vaughn who commit a new felony while
released on bond for a prior felony:
"When a new felony is committed while the offender is on release for a felony
pursuant to the provisions of article 28 of chapter 22 of the Kansas Statutes Annotated, a
new sentence may be imposed pursuant to the consecutive sentencing requirements of
K.S.A. 21-4608 and amendments thereto, and the court may sentence the offender to
imprisonment for the new conviction, even when the new crime of conviction otherwise
presumes a nonprison sentence. In this event, imposition of a prison sentence for the new
crime does not constitute a departure." K.S.A. 1999 Supp. 21-4603d(a)(11); see L. 1999,
ch. 164, § 13.
The Legislature thus gave the district courts the power to impose a new sentence of
imprisonment for felons such as Vaughn, "pursuant to the consecutive sentencing
requirements of K.S.A. 21-4608" (now K.S.A. 2019 Supp. 21-6606), even when the new
crime of conviction otherwise presumed a nonprison sentence. That language changed
stylistically in 2013 to its current language, "a new sentence may be imposed
consecutively pursuant to the provisions of K.S.A. 21-6606." K.S.A. 2013 Supp. 21-
6604(f)(4). Nothing the Legislature did related to the concurrent/consecutive issue, as
Vaughn alleges.
The lens through which Vaughn reads K.S.A. 2019 Supp. 21-6604(f)(4) presumes
that the Legislature meant to address the concurrent/consecutive issue by using the word
"may." But that presumption finds no support in legislative history and invites a
misreading of the statute. The issue this statute addresses is whether the court has the
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authority to sentence offenders such as Vaughn to prison for a new felony presumed to be
a nonprison sentence. This statute gives the court the ability to impose a new prison
sentence for such felons, but only consecutively, in accordance with the requirements of
K.S.A. 2019 Supp. 21-6606(d). A district court sentencing a defendant for a new felony
committed while on felony bond under that subsection may impose a nonprison sanction
or may impose a prison sanction even though the new crime of conviction otherwise
presumes a nonprison sentence. K.S.A. 2019 Supp. 21-6604(f)(4). In either event, the
sentence must be consecutive, unless the defendant shows manifest injustice. K.S.A.
2019 Supp. 21-6606(d); K.S.A. 2019 Supp. 21-6819(a).
We find it unnecessary to address the alternative analysis raised by the parties and
addressed in our other cases which have decided this issue adversely to Vaughn's
position. See, e.g., State v. Al-Bureni, No. 119,274, 2019 WL 985979, at * 4 (Kan. App.)
(unpublished opinion) (finding no conflict between these statutes because the language in
K.S.A. 2017 Supp. 21-6604[f][4] is broader than in K.S.A. 2017 Supp. 21-6606[d] and
the more specific statute controls), rev. denied 310 Kan. 1063 (2019).
The district court correctly ruled that because Vaughn failed to show manifest
injustice, Vaughn's sentence must be consecutive.
Error in Journal Entry
Finally, as the State points out, the journal entry erroneously states that the district
court applied Special Rule 9: "Crime Committed While Incarcerated, on Probation,
Parole, Conditional Release, or Postrelease Supervision for a Felony." But the sentencing
transcript reflects that the district court applied Special Rule 10 because Vaughn was on
felony bond during the commission of the crime. Generally, "where the sentence
announced from the bench differs from the sentence later described in the journal entry,
the orally pronounced sentence controls." Abasolo v. State, 284 Kan. 299, 304, 160 P.3d
17
471 (2007). The State has noted its intent to prepare a nunc pro tunc journal entry to
correctly reference Special Rule 10 instead of Special Rule 9, and we trust it will do so.
Affirmed.
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