State v. Booker ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,144
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ROBERT H. BOOKER III,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed March 26, 2021.
Affirmed.
Submitted by the parties for summary disposition pursuant to K.S.A. 2020 Supp. 21-6820(g) and
(h).
Before POWELL, P.J., GREEN and HILL, JJ.
PER CURIAM: Robert H. Booker III appeals the district court's denial of his motion
to correct illegal sentence. We granted Booker's motion for summary disposition in lieu
of briefs pursuant to Supreme Court Rule 7.041A (2020 Kan. S. Ct. R. 47). The State
responded to Booker's motion by agreeing that summary disposition was appropriate.
Based on our review of the record, we do not find that the district court erred in denying
Booker's motion to correct illegal sentence. Thus, we affirm.
In 2014, a jury convicted Booker of aggravated sexual battery and sexual battery,
which had been submitted to the jury as a lesser included offense. At sentencing, the
district court vacated Booker's sexual battery conviction because it was a lesser included
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offense of his other conviction, which was more severe. The district court sentenced
Booker to 55 months in prison, awarded him credit for time already served, and imposed
lifetime postrelease supervision.
Booker appealed on grounds unrelated to this appeal and did not argue that
insufficient evidence supported his aggravated sexual battery conviction. Nor did Booker
argue the district court should have dismissed his aggravated sexual battery conviction
instead of his sexual battery conviction. Another panel of this court affirmed Booker's
conviction and sentence. State v. Booker, No. 113,846, 2016 WL 5012325, at *9 (Kan.
App. 2016) (unpublished opinion).
On February 26, 2020, Booker filed his present motion to correct illegal sentence
under K.S.A. 2019 Supp. 22-3504. In that motion, he argued he should have only
received a sentence for sexual battery, not aggravated sexual battery, because the jury
convicted him of both crimes. The district court summarily denied his motion because it
presented "no substantial questions of fact or law." Booker timely appeals.
A sentence is illegal when it is imposed by a court without jurisdiction; it does not
conform to the applicable statutory provisions, either in character or the term of
punishment; or it is ambiguous about the time and manner in which it is to be served.
K.S.A. 2020 Supp. 22-3504(c)(1); see State v. Hambright, 310 Kan. 408, 411, 447 P.3d
972 (2019).
Booker argues that because the jury found him guilty of both aggravated sexual
battery, a felony, and the lesser included offense of sexual battery, a misdemeanor, he
should have been sentenced only for the lesser crime, rendering his sentence to the higher
severity level crime illegal. Because he was sentenced to the higher severity level crime,
he argues the district court erred in denying his motion to correct illegal sentence.
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We disagree with Booker because his real complaint is about his conviction for
aggravated sexual battery. A motion to correct an illegal sentence is not the proper
procedural vehicle to reverse a conviction. "K.S.A. 22-3504 is solely a vehicle to correct
a sentence." State v. Gilbert, 299 Kan. 797, 801, 326 P.3d 1060 (2014).
Moreover, "sexual battery is a lesser included offense of aggravated sexual
battery." State v. Pfannenstiel, 302 Kan. 747, 753, 357 P.3d 877 (2015); see K.S.A. 2020
Supp. 21-5109(b) (defining lesser included offense). When a defendant receives
multiplicitous convictions, as is the case here, "the defendant should be sentenced only on
the more severe offense." State v. Winters, 276 Kan. 34, 43, 72 P.3d 564 (2003); see State
v. Craig, 311 Kan. 456, 463, 462 P.3d 173 (2020) (upholding district court's imposition
of sentence on more severe crime when jury convicted defendant of two offenses based
on same criminal act). It is also proper for the district court to vacate the lesser
conviction. See State v. Turbeville, 235 Kan. 993, 995, 686 P.2d 138 (1984); see also
K.S.A. 2020 Supp. 21-5109(b) ("defendant may be convicted of either the crime charged
or a lesser included crime, but not both.").
The district court properly sentenced Booker to the more severe offense of
aggravated sexual battery and his sentence is not illegal under the parameters set by
K.S.A. 2020 Supp. 22-3504.
Affirmed.
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