State v. Quested

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 106,805
STATE OF KANSAS,
Appellee,
v.
JOSHUA QUESTED,
Appellant.
SYLLABUS BY THE COURT
1.
An appellate court has jurisdiction to correct an illegal sentence even if a
defendant bargained for the sentence as part of a plea agreement.
2.
A sentencing judge in one Kansas county has the authority to order a sentence to
be served consecutive to a sentence previously imposed by a sentencing judge in another
Kansas county.
Review of the judgment of the Court of Appeals in an unpublished opinion dated July 20, 2012.
Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed June 26, 2015. Judgment of the
Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.
Christina M. Trocheck, assistant county attorney, argued the cause, Ellen Mitchell, county
attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
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The opinion of the court was delivered by
LUCKERT, J.: Joshua Quested appeals, contending the sentencing judge imposed
an illegal sentence by ordering the sentences in this Saline County case be served
consecutive to a previously imposed Dickinson County sentence. He argues no Kansas
statute explicitly authorizes consecutive sentences for convictions arising in separate
cases prosecuted in different counties. Although the State does not dispute this assertion,
it urges us to follow the 20-year-old holding in State v. Chronister, 21 Kan. App. 2d 589,
903 P.2d 1345 (1995), which recognized the power of a sentencing judge to order that a
sentence be served consecutive to a sentence previously imposed in a different county.
We agree with this precedent, and we hold that Quested's sentences conformed to Kansas
law and are not illegal. We, therefore, affirm his sentences.
FACTS AND PROCEDURAL BACKGROUND
Pursuant to a plea agreement, Quested pleaded guilty in the Saline County District
Court to nonresidential burglary and possession of stolen property in case number 07 CR
249. He also pleaded guilty to possession of marijuana and possession of stolen property
in case number 07 CR 47. Under the terms of the plea agreement, Quested agreed that his
sentences in Saline County would run consecutive to a yet-to-be-imposed sentence for
another recent conviction in Dickinson County case number 07 CR 15. The Dickinson
County crimes were factually related to the crimes in one of the Saline County cases.
After being convicted in the three cases, Quested first received his sentence in the
Dickinson County District Court. The next day, Quested proceeded to sentencing for his
Saline County convictions. The State, consistent with the plea agreement, requested that
Quested's Saline County sentences run consecutive to the Dickinson County sentence
imposed the previous day. The Saline County sentencing judge adopted this
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recommendation when imposing sentence. The judge suspended execution of the
sentence, however, and granted Quested a dispositional departure to probation.
Nearly 1 year later, the judge revoked Quested's probation after Quested attempted
to escape from Labette Correctional Conservation Camp. The judge ordered Quested to
serve his underlying prison sentence. Quested then filed a motion to correct an illegal
sentence, claiming that the sentencing judge had no statutory authority to make his Saline
County sentences run consecutive to his Dickinson County sentence. After a hearing, the
Saline County sentencing judge denied Quested's motion. Quested timely appealed to the
Court of Appeals, which affirmed. We granted Quested's petition for review. See State v.
Quested, No. 106,805, 2012 WL 3000385, at *1-2 (Kan. App. 2012) (unpublished
opinion), rev. granted October 17, 2013.
ANALYSIS
Issue: Did the sentencing judge have the authority to order Quested's Saline County
sentences be served consecutive to Quested's previously imposed Dickinson County
sentence?
1.1. Preservation
Initially, the State contends that we lack jurisdiction to review Quested's Saline
County sentences because the judge imposed sentences Quested bargained for in his plea
agreement. Under K.S.A. 2014 Supp. 21-6820(c)(2), an "appellate court shall not
review . . . any sentence resulting from an agreement between the state and the defendant
which the sentencing court approves on the record."
While K.S.A. 2014 Supp. 21-6820(c)(2) would appear to support the State's
position, another statute—K.S.A. 22-3504(1)—provides that a "court may correct an
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illegal sentence at any time." 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 State v. Cullen, 275 Kan. 56, 60-61, 60 P.3d 933 (2003); cf. State v.
Morningstar, 299 Kan. 1236, Syl. ¶ 1, 329 P.3d 1093 (2014) (appellate courts have
jurisdiction to determine the authority to impose a consecutive sentence even when a
defendant receives a presumptive sentence, which is generally not appealable). Quested
invoked K.S.A. 22-3504(1) and its authorization to raise a legality challenge at any time
by filing a motion to correct an illegal sentence and arguing his Saline County sentences
do not conform to Kansas law. See State v. Sims, 294 Kan. 821, 825, 280 P.3d 780 (2012)
(defining an "illegal sentence" to include one that fails to conform to law).
Hence, Quested's plea agreement does not waive his right to attack his sentence on
the basis it was not authorized by statute.
1.2. Kansas' sentencing statutes and consecutive sentences
Quested's motion for illegal sentence and his appellate arguments focus on the lack
of statutory authority empowering the Saline County sentencing judge to impose
sentences consecutive to the Dickinson County sentence. He argues there is no statute
addressing consecutive sentences under the circumstances of his case; i.e., when a
sentence is imposed on different dates, in courts of different Kansas counties, for separate
crimes arising from different charging documents. He notes that Kansas statutes address
the issue of consecutive sentences in some circumstances, just not his. The State does not
argue that any statute authorizes the sentencing judge's order. Instead, it relies on
Chronister, 21 Kan. App. 2d 589, which served as the basis for the Court of Appeals'
decision. Quested, 2012 WL 3000385, at *1-2.
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As Quested suggests, K.S.A. 2006 Supp. 21-4720—a provision of the Kansas
Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., which became effective in
1993—discusses consecutive sentencing but does not cover the circumstances of his case.
K.S.A. 2006 Supp. 21-4720 states:
"(a) The provisions of subsections (a), (b), (c), (d), (e) and (h) of K.S.A. 21-4608
and amendments thereto regarding multiple sentences shall apply to the sentencing of
offenders for crimes committed on or after July 1, 1993, pursuant to the sentencing
guidelines system as provided in this act. The mandatory consecutive requirements
contained in subsections (c), (d) and (e) shall not apply if such application would result in
a manifest injustice.
"(b) The sentencing judge shall otherwise have discretion to impose concurrent
or consecutive sentences in multiple conviction cases. The sentencing judge shall state on
the record if the sentence is to be served concurrently or consecutively." (Emphasis
added.) K.S.A. 2006 Supp. 21-4720(b).
At first glance, the plain language of K.S.A. 2006 Supp. 21-4720(b) appears to be
a broad grant of discretion to impose consecutive sentences. But in lieu of a statutory
definition for the phrase "multiple conviction cases," this court—in a context different
from that presented today—has held the term in K.S.A. 2006 Supp. 21-4720(b) is solely a
reference "to sentencing on multiple convictions from one charging document." State v.
Koehn, 266 Kan. 10, 17, 966 P.2d 63 (1998); State v. Roderick, 259 Kan. 107, 113-14,
911 P.2d 159 (1996). Moreover, that "definition applies for all provisions of K.S.A. 21-
4720(b)." State v. Bolin, 266 Kan. 18, Syl. ¶ 2, 968 P.2d 1104 (1998). Because Quested's
multiple convictions did not arise from a single charging document, the judicial
construction of the term "multiple conviction cases" means that K.S.A. 2006 Supp. 21-
4720(b) did not provide the Saline County sentencing judge with the authority to order
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Quested to serve his Saline County sentences consecutive to his Dickinson County
sentence.
The other subpart of this statute—K.S.A. 2006 Supp. 21-4720(a)—refers back to
several subsections of K.S.A. 21-4608, which was part of the 1969 codification of the
criminal law. L. 1969, ch. 180, sec. 21-4608. Under K.S.A. 21-4608(a), a sentencing
judge has discretion to impose consecutive sentences when sentencing a defendant on the
same day for different crimes. This provision applied to Quested's two Saline County
convictions but not to his Dickinson County sentence. Subsection (b) grants discretion for
a consecutive sentence when a defendant commits a crime while on various forms of
release for a prior misdemeanor conviction. Additionally, subsections (c), (d), and (e)
mandate a consecutive sentence when a defendant commits a crime while either
incarcerated or on some form of release for a prior felony conviction. See also K.S.A.
2006 Supp. 21-4603d(f). But Quested did not commit a subsequent crime while
incarcerated or on release; he committed additional crimes prior to being arrested for the
first crimes. Thus, he is correct that subsections (b), (c), (d), and (e) do not apply to his
case.
In addition, the State and Quested both accept that K.S.A. 21-4608(h) does not
apply to his situation. This provision states:
"When a defendant is sentenced in a state court and is also under sentence from a
federal court or other state court or is subject to sentence in a federal court or other state
court for an offense committed prior to the defendant's sentence in a Kansas state court,
the court may direct . . . that such state sentences as are imposed may run concurrently
with any federal or other state sentence imposed." (Emphasis added.) K.S.A. 21-4608(h).
The Court of Appeals panel deciding Chronister interpreted this provision to apply
only if the prior sentence had been imposed in the court of another state or a federal
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court. Chronister, 21 Kan. App. 2d at 593. Under this interpretation of K.S.A. 21-
4608(h), no statutory provision would expressly apply in Quested's situation. The panel
in this case did not analyze the statutes; instead it merely cited Chronister. Quested, 2012
WL 3000385, at *1-2.
We are not totally convinced the Chronister panel's reading of K.S.A. 21-4608(h)
is correct. The first few words of K.S.A. 21-4608(h)—"[w]hen a defendant is sentenced
in a state court"—apparently refers to the court imposing the new sentence, which
obviously would be a court in Kansas. This suggests the subsequent references to a "state
court" that imposed a prior sentence also include state courts in Kansas—whether in a
different county or even the county of the current conviction. Quested's situation is
arguably contemplated by the statute: He was sentenced in Saline County (in a state
court) while also under sentence or subject to sentence in Dickinson County (other state
court) for an offense committed prior to his sentence in Saline County (a Kansas state
court). At a minimum, the statute does not expressly require that the "other state court"
sentence be issued by the court of another state.
Nevertheless, the statute does not specifically authorize the imposition of a
consecutive sentence. Instead, it states that "such state sentences as are imposed may run
concurrently with any federal or other state sentence." K.S.A. 21-4608(h). Although there
is no reference to a consecutive sentence, the provision implies that the standard order
would be to run the sentences consecutively. The statute arguably clarifies that need not
always be the case; the provision allows the court to use discretion in determining
whether to impose consecutive or concurrent sentences. See Chronister, 21 Kan. App. 2d
at 593.
We hesitate to resolve the ambiguities of this provision, for there are many, in an
appeal where its meaning has not been argued by the parties, especially since we agree
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with the remainder of the Chronister opinion. Moreover, even if we were to sort through
the ambiguities of K.S.A. 21-4608(h), we would walk the same path as did the Chronister
court in trying to determine the legislature's intent. See State v. Phillips, 299 Kan. 479,
495, 325 P.3d 1095 (2014) (court's first task in construing the statutory language is to
ascertain legislative intent through an analysis of the language employed, giving ordinary
words their ordinary meaning).
We, therefore, will analyze Quested's case based on his premise—which is true
even if K.S.A. 21-4608(h) applies—that no Kansas statute expressly authorizes a
sentencing judge from ordering a sentence to run consecutive to a sentence previously
imposed in a different county. But we point out that it is equally true that no Kansas
statute expressly prohibits a sentencing judge from ordering a sentence to run consecutive
to a sentence previously imposed in a different county. Quite simply, no statute expressly
addresses this situation.
This legislative silence creates an ambiguity. When faced with an ambiguity,
courts must attempt to ascertain legislative intent and in doing so may look to canons of
construction, legislative history, the circumstances attending the statute's passage, the
purpose to be accomplished, and the effect the statute may have under the various
constructions suggested. See In re Marriage of Traster, 301 Kan. 88, 98, 339 P.3d 778
(2014); Phillips, 299 Kan. at 495. The Chronister panel employed some of these
considerations in reaching its holding.
1.3. Chronister
In Chronister, as here, a defendant received sentences on different dates for crimes
occurring in different counties. The second sentencing judge ordered Chronister to serve
that sentence after he completed the earlier sentence. Chronister, 21 Kan. App. 2d at 590-
8
91. On appeal, Chronister argued the sentencing judge lacked authority to order the
sentences be served consecutively, noting that no statute explicitly authorized
consecutive sentences under circumstances like his.
The Chronister Court of Appeals panel concluded that no statute covered the
situation and discounted the applicability of K.S.A. 21-4608(h) by limiting it to apply
when a defendant is under sentence or subject to sentence in "other jurisdictions." 21
Kan. App. 2d at 593. Nevertheless, the Chronister panel held the sentencing judge had
discretion to order Chronister to serve his sentence consecutively to the sentence
previously imposed in a different county. The panel did so by noting that the statutes
allowed for consecutive sentencing if the earlier sentence had been imposed in either
"another state" or in federal court and properly determining that it would be "illogical" to
conclude the legislature intended a sentencing benefit to defendants who committed more
than one offense in Kansas. 21 Kan. App. 2d at 593.
In addition, the Chronister court noted that "[p]rior to 1982, the imposition of
concurrent or consecutive sentences in all criminal cases was placed within the sound
discretion of the trial court" even though no statutory provisions mandated consecutive
sentences. 21 Kan. App. 2d at 593 (citing State v. Reed, 237 Kan. 685, 703 P.2d 756
[1985]). Then, in 1982, the legislature limited judicial discretion by mandating
consecutive sentences in certain cases "in response to public concern." 21 Kan. App. 2d
at 593. "Given the impetus behind the 1982 amendment, it is doubtful that the legislature
also intended to strip courts of the power to impose consecutive sentences in cases such
as the present one" where crimes were committed in two different Kansas counties. 21
Kan. App. 2d at 593-94.
Although this court has not previously addressed the issue in Chronister since the
KSGA became effective in 1993, the State urges us to recognize that the Chronister
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holding has guided sentencing in Kansas for 20 years, including in this case, and to adopt
its reasoning. While the Chronister panel read K.S.A. 21-4608(h) differently than we do,
the panel's reasoning supports our interpretation of the legislature's intent. In addition, we
agree that the doctrine of stare decisis justifies our adoption of Chronister.
1.4. Following precedent
Indeed, following precedent—especially such long-standing precedent—promotes
system-wide stability and continuity. Crist v. Hunan Palace, Inc., 277 Kan. 706, 715, 89
P.3d 573 (2004). We recognize that we are not bound by the Court of Appeals' decision,
but it has guided sentencing judges for 20 years. And no other decision has clearly
instructed sentencing judges to do anything but follow Chronister—the only appellate
decision specifically addressing the circumstances of this case. See Crist, 277 Kan. at 715
("'It is recognized under the doctrine of stare decisis that, once a point of law has been
established by a court, that point of law will generally be followed by the same court and
all courts of lower rank in subsequent cases where the same legal issue is raised.'").
Nevertheless, Quested argues we should not adopt Chronister because it was
wrongly decided. Certainly, even if we were bound by a Court of Appeals decision,
which we are not, "[t]he doctrine of stare decisis [would] not compel us to perpetuate an
incorrect analysis of a statute enacted by the legislature." Hall v. Dillon Companies, Inc.,
286 Kan. 777, 787, 189 P.3d 508 (2008). But, as Quested himself takes pains to point out,
this is not a situation where the Chronister court ignored or modified the plain language
in a statute. Rather, the Chronister court seemingly held that in lieu of a direct statement
by the legislature abrogating a judge's common-law authority to impose a consecutive
sentence, the judge retained the authority to decide whether a sentence should be
concurrent or consecutive, especially since recognizing that authority furthered the
legislative policy. Chronister, 21 Kan. App. 2d at 593-94. Although the discussion of this
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point in Chronister is implicit and brief, other cases provide context and support for the
proposition that a judge's common-law authority to impose consecutive sentences is not
abrogated unless the legislature enacts a statute that does so or otherwise expresses a
contrary intent.
1.5. United States Supreme Court decisions
Decisions of the United States Supreme Court illustrate the point. The Court
documented the history of a judge's common-law power to impose consecutive sentences
in Oregon v. Ice, 555 U.S. 160, 129 S. Ct. 711, 172 L. Ed. 2d 517 (2009). The Ice Court
cited two general authorities supporting the longstanding recognition of a judge's power
to exercise discretion and to order a sentence to run either concurrent with or consecutive
to another sentence. 555 U.S. at 168-69 (quoting 1 J. Bishop, Criminal Law § 636, pp.
649–650 [2d ed. 1858] ["'(W)hen there are two or more convictions, on which sentence
remains to be pronounced; the judgment may direct, that each succeeding period of
imprisonment shall commence on the termination of the period next preceding.'"]; A.
Campbell, Law of Sentencing § 9:22, p. 425 [3d ed. 2004] ["'Firmly rooted in common
law is the principle that the selection of either concurrent or consecutive sentences rests
within the discretion of sentencing judges.'"]).
The Ice Court also cited several English cases to show that a judge's authority to
impose a consecutive sentence had been recognized before the "founding of our Nation"
and to establish that the "historical record further indicates that a judge's imposition of
consecutive, rather than concurrent, sentences was the prevailing practice." 555 U.S. at
169 (quoting Lee v. Walker, [1985] 1 Q.B. 1191, 1201 [1984] ["'(T)he High Court has
always had inherent jurisdiction to impose consecutive sentences of imprisonment in any
appropriate case where the court had power to imprison.'"]; Queen v. Cutbush, 2
L.R.Q.B. 379, 382, 10 Cox Crim. Cas. 489, 492 [1867] ["'(R)ight and justice require
11
(that) when a man has been guilty of separate offences, . . . that he should not escape
from the punishment due to the additional offence, merely because he is already
sentenced to be imprisoned for another offence"; also noting that it had been the practice
to impose consecutive sentences "'so far as living judicial memory goes back'"]; and
citing King v. Wilkes, 19 How. St. Tr. 1075, 1132-1136 [K.B. 1769]).
The Ice Court did note, however, that a legislature is free to "rein in the discretion
judges possessed at common law to impose consecutive sentences at will." 555 U.S. at
171. The effect of such an attempt to rein discretion was tested 3 years later in Setser v.
United States, 566 U.S. ___, 132 S. Ct. 1463, 182 L. Ed. 2d 455 (2012).
In Setser, the United States Supreme Court considered whether a statute passed by
Congress limited the authority to such an extent that it was totally abrogated under the
circumstances underlying the case. The federal sentencing statutes in question—much
like Kansas'—addressed some, but not all, multiple sentencing situations. In light of those
federal statutes, the question in Setser was whether a federal judge had the authority to
order a defendant to serve his federal sentence consecutive to a yet-to-be-imposed state
sentence. Federal statutes regarding consecutive or concurrent sentences addressed only
multiple sentences imposed at the same time or a sentence imposed on a defendant who
was already subject to an undischarged term of imprisonment. Neither circumstance
applied, but the Court held the federal sentencing judge had the discretion to impose a
consecutive sentence.
The Setser Court reasoned that the federal sentencing statutes had to be construed
in light of "'the common-law background against which the statutes . . . were enacted.'"
132 S. Ct. at 1468. Under that approach, the Court recognized: "Judges have long been
understood to have discretion to select whether the sentences they impose will run
concurrently or consecutively with respect to other sentences that they impose, or that
12
have been imposed in other proceedings." 132 S. Ct. at 1468. The Court observed there
must be a mechanism to determine whether two or more sentences are concurrent or
consecutive, and Congress had done nothing to foreclose the exercise of judges'
commonly recognized authority to make the determination. 132 S. Ct. at 1468.
The Court also rejected the defendant's argument that Congress' grant of authority
to impose consecutive sentences in "scenario A and scenario B [means] there is no such
discretion in scenario C." 132 S. Ct. at 1469. The points made by the Court in rejecting
this argument apply equally to Kansas' statutory scheme:
"The Latin maxim on which Setser relies—expressio unius est exclusio
alterius—might have application here if the provision in question were a conferral of
authority on district courts. Giving sentencing authority in only specified circumstances
could be said to imply that it is withheld in other circumstances. Section 3584, however,
is framed not as a conferral of authority but as a limitation of authority that already exists
(and a specification of what will be assumed when the exercise of that authority is
ambiguous). It reads not 'District courts shall have authority to impose multiple terms of
imprisonment on a defendant at the same time, etc.' but rather 'If multiple terms of
imprisonment are imposed on a defendant at the same time, [etc.]'—quite clearly
assuming that such authority already exists. The mere acknowledgment of the existence
of certain pre-existing authority (and regulation of that authority) in no way implies a
repeal of other pre-existing authority. And that is especially true when there is an obvious
reason for selecting the instances of pre-existing authority that are addressed—to wit, that
they are the examples of sentencing discretion most frequently encountered." 132 S. Ct.
at 1469.
The United States Supreme Court is not alone in reaching the conclusion that the
common-law authority to impose a consecutive sentence continues in situations where
there is not a legislative directive otherwise. Several state courts have reached the same
conclusion. E.g., State v. Leak, 297 Conn. 524, 537-39, 998 A.2d 1182 (2010) (courts
13
have "inherent common-law power to stay the execution of their own judgments and
thereby order that confinements run consecutively"; power continues in lieu of clear
legislative mandate to alter the common law even in the absence of an express statutory
conferral of authority); Schamber v. State, 152 Ga. App. 196, 198, 262 S.E.2d 533 (1979)
(finding sentencing statute not applicable and not "a limitation upon the discretion of the
trial court, derived from the common law, to set sentences . . . to commence at the
termination of all sentences previously imposed"); State v. Calley, 140 Idaho 663, 665, 99
P.3d 616 (2004) (holding that while no sentencing statute permitted a court in one county
to impose a sentence consecutive to probation from another county, "[u]nder the common
law, the courts in Idaho have discretionary power to impose cumulative sentences");
Duquette v. Warden, New Hampshire State Prison, 154 N.H. 737, 743-44, 919 A.2d 767
(2007) (statutory silence regarding authority to impose consecutive sentence did not limit
common-law authority; inherent discretionary authority was only limited by certain
situations where consecutive sentences were mandated); State v. Trice, 159 Or. App. 1, 4-
5, 976 P.2d 569 (1999) ("nothing in the language of the statute . . . limits the court in the
exercise of its discretion from imposing partially consecutive sentences and concurrent
sentences").
1.6. Kansas decisions predating Chronister
These cases—both of the United States Supreme Court and of other state courts—
are not binding on us. They are merely persuasive support for the holding in Chronister.
Although not addressing these cases, Quested argues that any reliance on common-law
authority, as articulated in State v. Chronister, 21 Kan. App. 2d 589, 903 P.2d 1345
(1995), is contrary to the reasoning in another Court of Appeals decision, State v.
Crawford, 39 Kan. App. 2d 897, Syl. ¶¶ 2-3, 185 P.3d 315 (2008). He argues that under
Crawford, a judge lacks the authority to impose consecutive sentences unless specifically
authorized by statute.
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To better understand the Chronister panel's decision and the cases relied upon by
the Crawford panel, some historical context is helpful. Cases predating Chronister
generally support the Chronister panel's reasoning and, more specifically, the conclusion
that a sentencing judge retains the common-law power to impose consecutive sentences
in any circumstance where the Kansas Legislature has not restricted the authority or
stated a contrary legislative policy. In other words, as stated in one such decision, the
common-law rule "should be applied, in the absence of a statute governing the subject,
thus recognizing that the statute, if enacted, is controlling." (Emphasis added.) Beck v.
Fetters, 137 Kan. 750, 752, 22 P.2d 479 (1933); see K.S.A. 21-5103(a) (recognizing the
criminal code did not entirely displace common law; "where a crime is denounced by any
statute of this state, but not defined, the definition of such crime at common law shall be
applied"). Kansas cases predating Chronister largely reflect this reasoning.
The historical context begins as early as 1855 when the Kansas Territorial
Legislature curbed judicial sentencing discretion, requiring a judge to impose consecutive
sentences if the defendant had been "convicted of two or more offences before sentence
shall have been pronounced upon him for either offense." 1855 Laws of the Kansas
Territory, ch. 54, sec. 9. The statute was otherwise silent about the power to impose
consecutive sentences.
In 1907, in State v. Finch, 75 Kan. 582, 89 P. 922 (1907), this court considered the
effect of such a legislative silence. The version of the statute then in place required
consecutive sentences if a defendant had been convicted of two offenses during the same
court term. A defendant objected when a sentencing judge imposed consecutive terms of
imprisonment for convictions entered in different court terms, arguing a consecutive
sentence could only be imposed under the circumstances specifically covered by the
15
statute. Noting the statutory silence about his situation, the defendant argued that at
common law only a concurrent sentence would be allowed.
The Finch court did not accept this interpretation of the common law and, despite
the lack of statutory authority for the consecutive nature of the sentence, affirmed the
sentencing judge's order of consecutive sentences. The court reasoned that the statute
reflected "the legislative policy and the justice of adapting the punishment to the number
as well as to the enormity of crimes committed by one person, and, without regard to
strict technicality, it is incumbent upon the courts of the state so to conform the procedure
as to make the purpose of the law effective." Finch, 75 Kan. at 584; see Beck, 137 Kan. at
752; see also K.S.A. 21-4601 ("This [sentencing] article shall be liberally construed to
the end that persons convicted of crime shall be dealt with in accordance with their
individual characteristics . . . [and] dangerous offenders shall be correctively treated in
custody for long terms as needed."). Hence, although the statute addressed only a limited
circumstance—one that did not apply to the defendant's case—the court extended the
legislative policy of using consecutive sentences to fit the enormity of the criminal acts
and, in doing so, implicitly recognized a judge's common-law authority.
In 1923, the legislature enacted R.S. 62-1512, which mandated consecutive
sentences when a defendant had been "convicted of two or more offenses before sentence
shall have been pronounced upon him for either offense." In Beck, 137 Kan. at 752, this
court explained that this statute modified the common-law rule that had provided "that if
several sentences of imprisonment are imposed upon a person, covering the same period
of time, they will run concurrently unless the court expressly directs that they be served
consecutively." The court held a "court must render judgment in conformity with the
statutory policy" and impose consecutive sentences as required by the statute. 137 Kan. at
752-53. Nevertheless, the court expressly recognized the common law would have
applied in the absence of statute.
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Then, in 1969, the legislature adopted K.S.A. 21-4608. L. 1969, ch. 180, sec. 21-
4608. As with its predecessor statutes, it did not address all sentencing situations where
cumulative punishment might be considered. Where the previous statutes had mandated
cumulative punishment in some circumstances, the 1969 version reinstated a judge's
discretion to impose either concurrent or cumulative punishments when a sentence was
imposed on the same day. In effect, this clarified that the mandate of the statutes at issue
in Finch and Beck had been repealed. As in this case, the statute did not address the
power to impose consecutive sentences in cases where sentencing occurred on different
days. K.S.A. 21-4608.
Despite this silence, in Burns v. State, 215 Kan. 497, 500, 524 P.2d 737 (1974),
this court recognized "[t]he authority of the court in ordering consecutive or concurrent
sentences for convictions of two or more offenses at the same time or separate times is
discretionary with the court." (Emphasis added.) 215 Kan. at 500 (citing K.S.A. 1973
Supp. 21-4608). This statement seems to continue the longstanding recognition that a
judge retains discretion to impose a consecutive sentence in situations where a statute is
silent, as long as that authority is consistent with the legislative policy reflected in the
sentencing statutes. Indeed, in State v. Reed, 237 Kan. 685, 687, 703 P.2d 756 (1985),
this court recognized that during this time period, "the imposition of concurrent or
consecutive sentences in all criminal cases was placed within the sound discretion of the
trial court." (Emphasis added.)
In 1982, the legislature turned to a middle ground regarding judicial discretion,
enacting several provisions codified in subsections of K.S.A. 21-4608 that require a judge
to impose a consecutive sentence in specific situations—e.g., when a defendant commits
a new crime while incarcerated or on probation, assignment to a community corrections
program, parole, or conditional release. K.S.A. 21-4608. The 1982 amendments also
17
contained provisions requiring judges to impose a consecutive sentence if a defendant
committed a new crime while on bond in certain specified circumstances. These are the
provisions discussed in Chronister, 21 Kan. App. 2d at 593 (citing Reed, 237 Kan. 685,
and pre-1982 K.S.A. 21-4608), and, although somewhat modified, that apply in this case.
These provisions were "somewhat ambiguous and . . . neglected to explicitly
include" the situation that arose in Reed, 237 Kan. at 688-89. Reed was released on bond
prior to trial. While released, Reed committed a theft and a burglary, and the district court
held the statute mandated consecutive sentences. This court affirmed, even though the
statutes did not explicitly refer to pretrial bond situations. In reaching this decision, this
court concluded that the legislature intended to "cover the waterfront" of situations where
a defendant committed a crime while temporarily released from custody. 237 Kan. at 688.
The court held that the legislative scheme mandated a consecutive sentence even though
the mandate was not explicit. 237 Kan. at 688-90. Logically, Reed supports Chronister:
Statutory silence as to a unique circumstance does not mean a sentencing judge does not
have consecutive sentencing authority. In Reed, as in Finch, this court considered a
judge's common-law authority to impose a consecutive sentence when it would further
legislative policy. In Reed, this meant the legislature had restricted the judge's authority
whereas in Finch it meant the legislature had not limited discretion.
As Chronister and these other cases recognize, nothing suggests the Kansas
Legislature ever intended to strip sentencing judges of their common-law power to
impose a consecutive sentence. At most, the history suggests the legislature has at times
directed a sentencing judge to impose a consecutive sentence in certain circumstances.
But the common-law power to impose a consecutive sentence has been abrogated only
when a statute addressing a situation has been adopted, and no such statute applies here.
Even if K.S.A. 21-4608(h) is interpreted as applying, it does not require a concurrent
sentence; it merely indicates the judge "may" impose one.
18
1.7. Post-Chronister cases supporting Quested's position are distinguishable
As previously noted, Quested relies on Crawford, decided 13 years after
Chronister. In Crawford, a Court of Appeals panel addressed a different situation and
held that there was no statutory authority to impose an adult sentence consecutive to a
juvenile adjudication. Crawford, 39 Kan. App. 2d 897, Syl. ¶ 2. The panel relied heavily
on this court's decision in In re W.H., 274 Kan. 813, 817-18, 57 P.3d 1 (2002), in which
we declined to find any common-law power to order consecutive sentences in juvenile
cases given that "[n]owhere in [the Kansas Juvenile Justice Code (KJJC), K.S.A. 38-1601
et seq.] did the legislature provide for consecutive sentencing." 274 Kan. at 822. In
rejecting common-law power, we spoke in broad terms about a Kansas judge's sentencing
authority, noting: "From its early beginnings, Kansas relied upon statutory authority to
impose consecutive sentencing even though Kansas may recognize that a court had the
common-law authority to impose consecutive sentences." 274 Kan. at 817.
To take this broad statement at face value and view it in isolation could lead to a
misunderstanding of the degree of reliance on statutory authority. As our discussion of
past cases reflects, the reliance has not meant that there must be explicit statutory
authorization to impose a consecutive sentence. Rather, it has often meant that the power
to impose a consecutive sentence continues to exist as long as its exercise is consistent
with legislative enactments.
Further, the In re W.H. court itself noted its reasoning was limited to the situation
involving a young adult offender and, in doing so, expressly distinguished that case from
the situation currently before us. The court distinguished the juvenile sentencing scheme,
which in large part had no common-law counterpart, from the adult scheme. Specifically,
19
the court acknowledged that in adult sentencing situations the legislature had recognized
consecutive sentences, at least in some situations. 274 Kan. at 814-15. And the court did
not reverse or question past decisions such as State v. Reed, 237 Kan. 685, 703 P.2d 756
(1985), where this court had mandated the use of consecutive sentences despite
legislative silence. Moreover, the In re W.H. court was particularly persuaded by another
fact that makes Quested's case distinguishable: "Kansas has . . . no history of court
decisions with legislative acquiescence supporting an implied power to impose
consecutive [juvenile] sentences where the statute is silent." 274 Kan. at 818. The court in
In re W.H. had no case that recognized any authority, common law or otherwise, for
imposing consecutive juvenile sentences.
Here, we have at least 20 years of legislative acquiescence since Chronister, 21
Kan. App. 2d 589, and nearly or over a century's since Beck, 137 Kan. at 752, and Finch,
75 Kan. at 584. The doctrine of stare decisis is particularly compelling in cases where, as
here, the legislature is free to alter a statute in response to court precedent with which it
disagrees but declines to do so. Indeed, in Beck this court acknowledged the legislature's
power to curb judicial sentencing discretion through explicit statutes. Beck, 137 Kan. at
752. But beginning with Finch, the court recognized that a legislative restriction on
sentencing authority in one situation did not foreclose the continued exercise of discretion
in another, unless, as in Reed, exercising discretion would be against legislative policy.
The legislature's continued, long-term acquiescence is a strong indication that the
Chronister court effected legislative intent when it determined the legislature meant for
Kansas judges to have the discretion to impose consecutive sentences when a defendant
commits crimes in multiple counties. See State v. Williams, 298 Kan. 1075, 1079, 319
P.3d 528 (2014); Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. ___, 134 S. Ct.
2398, 2411, 189 L. Ed. 2d 339 (2014); but see U.S.D. No. 501 v. Baker, 269 Kan. 239,
20
246-47, 6 P.3d 848 (2000) (recognizing that legislative inaction is not always indicative
of legislative intent).
Hence, our situation is distinguishable from juvenile offender situations in In re
W.H. and Crawford, and those cases do not compel us to reject Chronister or its
reasoning. Quested has not persuaded us we should abandon that precedent.
1.8. Osbey and legislative history
Although not cited by Quested, the dissent points us to a line of cases beginning
with State v. Osbey, 238 Kan. 280, 288, 710 P.2d 676 (1985), in which this court, without
citation to any authority, announced that "[i]n Kansas, sentencing of an individual is
strictly controlled by statute." That statement seems contrary to the cases we have
discussed today where a judge's common-law authority has filled gaps in legislation.
Moreover, the legislature has itself declared: "The common law as modified by
constitutional and statutory law, judicial decisions, and the conditions and wants of the
people, shall remain in force in aid of the General Statutes of this state." K.S.A. 77-109.
Because statutory silence confronted both the sentencing court and this court, the
sentencing statutes stand in need of the aid of common-law rules. See Setser v. United
States, 566 U.S. ___, 132 S. Ct. 1463, 1467, 182 L. Ed. 2d 455 (2012) (recognizing that
someone must answer the question of whether a defendant's multiple sentences will be
served consecutively or concurrently and there must be some source for the authority to
make that decision).
Thus, Osbey's statement that sentencing is strictly controlled by statute is suspect
insofar as its simplicity fails to expose nuance. Even so, the intent of that statement
remains valid because, as our discussion illustrates, we have measured the common-law
rule against legislative policy. Common-law rules can only apply when consistent with
21
other sentencing statutes. Statutory policy has always controlled. And where a statute
covers a subject, these cases illustrate that a judge may not rely on the common law for
contrary authority.
These principles are consistent with the outcome and the general rationale of this
court's decisions in those cases where we have stated that sentencing is strictly controlled
by statute. Often these cases dealt with statutes that explicitly covered a sentencing issue.
For example, in Osbey and many of the other cases, the issue related to whether a
disposition was legal, a subject Osbey correctly noted was covered by statute. See State v.
McCarley, 287 Kan. 167, 176, 195 P.3d 230 (2008) (sentence for a level 8 person felony
does not conform to the statutory provision for a level 5 person felony, the offense of
conviction, and is therefore illegal); State v. Martin, 285 Kan. 735, 738-39, 175 P.3d 832
(2008) (K.S.A. 2005 Supp. 21-4716 controls procedure for departing from presumptive
sentence); State v. Campbell, 273 Kan. 414, 421, 44 P.3d 349 (2002) (K.S.A. 2001 Supp.
21-4603d dictates allowable dispositions at time of sentencing and does not allow a judge
to "intentionally or inadvertently fail to impose one of the statutory dispositions"); Osbey,
238 Kan. at 287 (same).
The other cases deal with a sentencing court's power to modify sentences. In those
cases, the court reasoned statutes limited the court's power, allowing only the correction
of arithmetic and clerical errors. Also, the legislative background of the current sentence-
modification statute revealed the legislature's intention to repeal and not replace statutes
that had allowed a modification within a specified time of the sentence's imposition. See
State v. Anthony, 274 Kan. 998, 1000-02, 58 P.3d 742 (2002); see also State v. Guder,
293 Kan. 763, Syl. ¶ 1, 267 P.3d 751 (2012) (following Anthony); State v. McKnight, 292
Kan. 776, 781-83, 257 P.3d 339 (2011) (at probation revocation hearing, sentencing
judge had statutory authority to modify original sentence and impose shorter sentence
with no postrelease supervision); State v. Saft, 244 Kan. 517, Syl. ¶ 1, 769 P.2d 675
22
(1989) (statute in effect set a temporal cutoff for modifying sentence and limited court's
ability to do so outside that time frame); State v. Vanwey, 262 Kan. 524, Syl. ¶ 4, 941
P.2d 365 (1997) (same).
The rationale of these decisions is largely consistent with the rationale of our
decision today. If a statute covers a subject matter, it controls. Further, any common-law
rule contrary to legislative policy is invalid even if a statute is silent on the subject
matter—e.g., in a situation such as in Beck, 137 Kan. 750, or Anthony, 274 Kan. 998. But
to say that statutes control sentencing to the total exclusion of common law is contrary to
the cases we have discussed, to K.S.A. 77-109, and, as we will next discuss, to the
legislative history and background of K.S.A. 21-4608 and the sentencing guidelines.
Speaking of the 1969 codification of the criminal law that included K.S.A. 21-
4608, Professor Paul E. Wilson, who was on the Judicial Advisory Committee that
worked on the codification, explained the common law's influence in the new criminal
code:
"The legislature alone has the power to prohibit and provide penalties for conduct that is
deemed inimical to the best interests of the State. At the same time, the common law has
played an important role in determining the substance of the criminal law of Kansas.
While the legislature has the exclusive power to prohibit conduct, the prohibitions are
often stated in terms of common law concepts. Thus, reference must often be made to the
common law in order to understand legislative intent." Wilson, New Bottles for Old
Wine: Criminal Law Revision in Kansas, 16 Kan. L. Rev. 585 (1968).
With respect to sentencing, Professor Wilson observed: "The view has been taken that
the fixing of sentence is a judicial function over which the court should have the ultimate
control, within the limits fixed by the legislature." (Emphasis added.) 16 Kan. L. Rev. at
23
603. As applicable to Quested's case, the legislature has not stated a limit on the
cumulative length of his multiple sentences.
To suggest the common law has no role in sentencing, the dissent cites a 1972 law
review article in which the author, Barkley Clark, observed: "The comprehensiveness of
the state Criminal Code, coupled with the elaborate procedural safeguards given to
defendants by the equally comprehensive Code of Criminal Procedure, suggests that the
legislature has preempted the criminal law field, except for matters such as minor traffic
violations." State Control of Local Government in Kansas: Special Legislation and
Home Rule, 20 Kan. L. Rev. 631, 672 (1972). But this article speaks to an issue that has
no bearing on our analysis—the power of cities to enact ordinances that might conflict
with state criminal law. In context, the comment does not suggest the legislature intended
for the 1969 criminal code to leave no place for the common law nor does it purport to
rebut the legislative history and comments of Professor Wilson, one of the bill's drafters.
Further, the legislative history surrounding the existence of the Kansas Sentencing
Guidelines reinforces that statutory law does not strictly control sentencing to the
exclusion of a judge's discretion when that discretion is not limited by a statute; a
sentencing court can, and sometimes must, do more than simply look to the statutes.
Granted, the legislature clearly expressed the intent to curtail some judicial discretion,
which had resulted in sentencing disparity. See Minutes, Senate Judiciary Committee,
S.B. 479, January 14, 1992 (Attachment 1); see also Minutes, Senate Judiciary
Committee, S.B. 479, January 16, 1992 (Attachment 1 [Gottlieb, A Review and Analysis
of the Kansas Sentencing Guidelines, 39 Kan. L. Rev. 65, 67 (1991)]); Minutes, House
Judiciary Committee, March 18, 1992 (Attachment 2) (noting it is well known that a
crime committed in some counties will receive a harsh punishment while the same crime
will get probation in another county).
24
At the same time, however, there was much debate about how strictly a sentencing
judge's discretion should be curbed and how much legislative "control" should be
exercised over a sentence. Those in favor of the guidelines argued: "The existence of
definite sentencing standards eliminates unstructured judicial discretion which, it is
argued, produces unwarranted disparity." Gottlieb, 39 Kan. L. Rev. at 67. On the other
hand, "[i]t will be a mistake . . . to eliminate judicial discretion. . . . [I]f sentencing is to
be humane, it will continue to require human judgment." 39 Kan. L. Rev. at 89.
In the end, although the legislature considered exercising complete control over
sentencing, it decided to alleviate opponents' concerns by assuring that sentencing
discretion remained—sentences were not subject to absolute statutory control. Indeed, on
January 24, 1992, the Senate Judiciary Committee made it a point to add language to the
minutes (possibly in response to a request for a clear statement of legislative intent)
indicating: "[T]he Committee recognizes that the guidelines are designed to regulate
judicial discretion, not to eliminate it." (Emphasis added.) Minutes, Senate Judiciary
Committee, S.B. 479, January 24, 1992. This understanding also permeated the later
hearings before the House Judiciary Committee. Minutes, House Judiciary Committee,
S.B. 479, March 20, 1992 (Attachment 1, p. 5.) ("The sentencing function of the court
was intended to be discretionary. . . . Certainly the legislature must give guidance to the
courts by establishing the public policy and perimeters on sentences. However, when
those perimeters become too restrictive to adapt the sentence to the characteristics of an
individual case, substantial injustices will occur.").
Although we find no clear legislative history discussing the legislature's intent
regarding whether a judge retained the authority to impose consecutive sentences in
situations not controlled by the statute, courts generally presume that the legislature acts
with full knowledge of existing law. State v. Reese, 300 Kan. 650, 656, 333 P.3d 149
(2014). That law includes the common-law rule recognizing that a sentencing judge has
25
the discretion to decide whether to impose a concurrent or a consecutive sentence and the
caselaw of this court in which we have filled the gap in previous statutes by allowing the
exercise of that common-law authority when doing so was consistent with the legislative
policy. Further, as this court recognized in State v. Chronister, 21 Kan. App. 2d 589, 593-
94, 903 P.2d 1345 (1995), it is doubtful that the legislature intended to strip courts of the
power to impose consecutive sentences in cases such as the present one where crimes
were committed in two different Kansas counties. This result would indeed be
unreasonable or absurd, and "'the legislature is presumed to intend that a statute be given
a reasonable construction.'" 21 Kan. App. 2d at 593; see State v. Murdock, 299 Kan. 312,
320, 323 P.3d 846 (2014) (Rosen, J., dissenting) (explaining that part of the reason the
legislature later enacted the KSGA was "to address concerns regarding disparity in
sentencing practices across the state"). This is especially true under the facts of this case
where Quested's criminal acts in Dickinson and Saline counties were related and as part
of one crime spree. If convicted in one case for all the crimes, the sentencing judge would
have had express authority under K.S.A. 2006 Supp. 21-4720(b) to impose either
concurrent or consecutive sentences.
Significantly, K.S.A. 2006 Supp. 21-4720(b) of the KSGA incorporates a few
provisions from the 1969 law, including K.S.A. 21-4608. And when enacting the KSGA,
the legislature did not repeal K.S.A. 21-4601, which provides: "This [sentencing] article
shall be liberally construed to the end that persons convicted of crime shall be dealt with
in accordance with their individual characteristics . . . [and] dangerous offenders shall be
correctively treated in custody for long terms as needed." While most provisions of the
KSGA do not fall within the scope of this provision, K.S.A. 21-4608 does. And as we
have discussed, that provision was applicable at the time of this court's decisions in Burns
v. State, 215 Kan. 497, 500, 524 P.2d 737 (1974), and Reed, 237 Kan. 685.
26
Arguing for a contrary result, the dissent would hold that a sentencing judge can
only impose a concurrent sentence since no statute explicitly authorizes a consecutive
sentence. Yet, no statute or prior caselaw directly supports that conclusion. With no
statute to construe in Quested's favor, the rule of lenity—a rule of statutory construction
the dissent invokes—plays no part. Even when it does, it is "subject to the rule that
judicial interpretation must be reasonable and sensible to effect legislative design and
intent." See State v. Coman, 294 Kan. 84, 96, 273 P.3d 701 (2012). That design is
furthered by allowing a judge to exercise discretion to impose consecutive sentences
when a defendant engages in a crime spree in multiple counties, the same as if the
defendant were to have committed all the crimes in one county where the case could have
been treated as a multiple conviction case under K.S.A. 2006 Supp. 21-4720(b).
Moreover, if we were to simply mandate a concurrent sentence when no statute compels
that result, we would necessarily have to supply words the legislature did not write. The
dissent's solution thus falls subject to its own criticism, as we would again be at fault for
recognizing sentencing authority not "strictly controlled by statute." See McCarley, 287
Kan. at 176.
1.9. Conclusion
We choose, in the absence of a statute directly speaking to the issue, to rely on
over a century of this court's caselaw regarding adult criminal sentencing in which this
court has recognized that Kansas judges have the discretion to order either a consecutive
or concurrent sentence as long as doing so is consistent with legislative policy. Historical
perspective and practical necessity compel us to rely on common law in this limited and
unique circumstance.
We hold that a sentencing judge in one Kansas county has the authority to order a
sentence to be served consecutive to a sentence previously imposed by a sentencing judge
27
in another Kansas county. We, therefore, agree with the Court of Appeals' decision to
affirm the district court's denial of Quested's motion to correct an illegal sentence.
Affirmed.
MICHAEL J. MALONE, Senior Judge, assigned. 1
BEIER, J., concurring: I join in the majority's result and in its rationale based on
statutory construction.
***
NUSS, C.J., dissenting: I respectfully dissent.
Thirty years ago this court expressly declared that "[i]n Kansas, sentencing of an
individual is strictly controlled by statute." State v. Osbey, 238 Kan. 280, 288, 710 P.2d
676 (1985). This court has never disavowed this declaration. Indeed, we have often
repeated it as a ruling principle.
"Control" has been defined as "[t]o exercise authority or dominating influence
over; direct; regulate." The American Heritage Dictionary of the English Language 290
(1971). "Strictly" has been defined as "closely, precisely, rigorously; stringently." Black's
1
REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 106,805 under
the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court
created by the appointment of Justice Nancy Moritz to the United States 10th Circuit Court of
Appeals.
28
Law Dictionary 1591 (rev. 4th ed. 1968). In a similar vein, "strict" has been defined as
"2. Complete; absolute; strict loyalty. 3. Kept within narrow and specific limits: a strict
application of a law. . . . 5. Enforced or maintained rigorously; stringent: strict
standards." The American Heritage Dictionary of the English Language 1275 (1971).
So our court's chosen language of "strictly controlled" means that statutes
rigorously and exclusively regulate all sentencing in Kansas. Accordingly, if the authority
to impose consecutive sentences—as are involved in the instant case—is not contained
within Kansas statutes, there simply is no authority to do so. And because the majority
opinion admits there is no such statutory authority, our 30-year-old declaration from
Osbey applies. And our analysis ends.
But the majority asserts that a Court of Appeals panel opinion which directly
conflicts with this principle—State v. Chronister, 21 Kan. App. 2d 589, 903 P.2d 1345
(1995)—is not only controlling but also safeguarded by stare decisis. Like Justice
Johnson in his dissent, I too am unclear how an opinion from our intermediate appellate
court that was released 10 years after our unanimous opinion in Osbey can both trump
our stated principle and carry the protection of stare decisis—while Osbey does not.
The majority appears to reach this conclusion by asserting that "strictly controlled
by statute" only applies where the statute has actually spoken and is clearly applicable to
the situation. For example, if the statute provides that a sentence must be imposed within
certain limits and the resulting sentence is outside of those statutory limits, the sentence is
improper. Under this reading, however, there is little reason for the Osbey court to have
added the modifier "strictly" to the word "controlled"—since to control already means to
regulate.
29
As an alternative to assailing the meaning of Osbey's plain language, the majority
also appears to contend that the Osbey court—and all those Kansas courts listed in Justice
Johnson's dissent that have recited this language since 1985—obviously overstated what
should have been communicated. In other words, those courts were wrong to convey the
message that the legislature intends to fully occupy the sentencing field. I disagree:
Osbey's precise language correctly states Kansas law.
The clearest support from this court for my disagreement is In re W.H., 274 Kan.
813, 57 P.3d 1 (2002). There, the respondent argued that the district court had no
authority to impose consecutive juvenile sentences upon him and that the Court of
Appeals was wrong to find such authority. We agreed with the respondent, vacating the
sentences and remanding for resentencing.
At the core of this court's opinion in In re W.H. is a firm rejection of the rationale
of the Court of Appeals. The panel had reasoned that while the Kansas Juvenile Justice
Code (KJJC) provided no authority for imposition of consecutive sentences, the common
law could just "fill it in." In re W.H., 30 Kan. App. 2d 326, 41 P.3d 891 (2002). Of equal
importance to our court's rejection of that rationale is the analytical path it took to get
there.
At the very beginning of our court's analysis, it noted the panel had relied upon
New Jersey caselaw to conclude, among other things, that the imposition of consecutive
sentences is an inherent power of the judiciary based upon the common law. "'"The great
weight of authority in this country is that, without any statutory provision for consecutive
sentences, the power to impose them resides in the court."'" In re W.H., 274 Kan. at 817
(quoting State In Interest of J.L.A., 136 N.J. 370, 374, 643 A.2d 538 [1994] [quoting
State v. Mahaney, 73 N.J.L. 53, 56, 62 A. 265 (Sup. Ct. 1905)]). And the New Jersey
Supreme Court therefore concluded that in the absence of an express statutory
30
prohibition, a trial judge had the power to impose consecutive sentences. 274 Kan. at
816-17 (discussing State In Interest of J.L.A., 136 N.J. 370).
The In re W.H. court correctly observed, however, that Kansas' legal history—
from as far back as our territorial days in 1855—was quite different from New Jersey's:
"From its early beginnings, Kansas relied upon statutory authority to impose
consecutive sentencing even though Kansas may recognize that a court had the
common-law authority to impose consecutive sentences. Beck v. Fetters, 137 Kan.
750, 751-52, 22 P.2d 479 (1933); see State v. Finch, 75 Kan. 582, 89 P. 922
(1907). The common-law rule was abrogated by statute in 1855:
'When any person shall be convicted of two or more
offences before sentence shall have been pronounced upon him for
either offence, the imprisonment to which he shall be sentenced
upon the second or other subsequent conviction shall commence at
the termination of the term of imprisonment to which he shall be
adjudged upon prior convictions.' (Emphasis added.) 1855 Laws of
the Kansas Territory, ch. 54, § 9." 274 Kan. at 817.
The In re W.H. court further observed that this Kansas statutory law authorizing
consecutive sentences had essentially been the same for 108 years:
"This law, though codified at various places, remained unchanged until
1963:
'Section 62-1512 of the General Statutes of 1949 is hereby
amended to read as follows: Sec. 62-1512. Whenever a person is
convicted of two or more offenses charged in one or more
informations, indictments, or complaints, whether such convictions
take place at the same or at separate times, it shall be the duty of
the sentencing judge to prescribe whether the sentences shall be
served concurrently or consecutively. Whenever sentences are
31
pronounced in two (2) or more separate cases upon the same day
and it is the order of the judge that the sentences shall be served
consecutively, the journal entries shall reflect the sequence in
which the sentences were pronounced: Provided, That whenever
the record is silent as to the manner in which two (2) or more
sentences are to be served, they shall be served concurrently, each
commencing on the date it was imposed.' L. 1963, ch. 306, § 1."
In re W.H., 274 Kan. at 817-18.
The court also observed New Jersey's legislative acquiescence over a period of
years to consecutive sentences imposed without express authority in its state young adult
offenders code. By contrast, Kansas had no such code and no history of legislative
acquiescence to court decisions on this issue.
The In re W.H. court therefore decided that "[g]iven the disparity between New
Jersey and Kansas, we conclude that J.L.A. provides little support for implied consecutive
sentencing power under the KJJC." 274 Kan. at 818.
In addition to the court's express rejection of any notion of a lack of statutory
consecutive sentencing authority being "filled in" from the common-law, it implicitly
rejected any notion of such lack of authority being filled in by other sources, e.g., the
Kansas Sentencing Guidelines Act (KSGA).
This court looked at the similarities between the KJJC for sentencing juveniles
and, as in the instant case, the KSGA for sentencing adults.
"Adoption of the juvenile sentencing scheme follows upon the heels of the
Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq. Some of the
same philosophy which motivated adoption of the KSGA as to classification and
definite terms is incorporated into the KJJC. W.H. makes a convincing argument
32
based upon such similarities. W.H. argues that provisions of K.S.A. 38-16,129 are
similar to the provisions of the KSGA. Both provide for presumptive sentences
based on the offender's criminal history and both provide that a presumptive
sentence must be imposed unless a departure under circumstances set forth is
approved. K.S.A. 38-16,132; K.S.A. 21-4716. Appeals may not be taken if the
sentences fall within the presumptive range. K.S.A. 38-1681(c)(2)(A); K.S.A. 21-
4721(c)(1). In spite of these similarities, W.H. notes that there is a marked
difference between the KSGA and the KJJC on the subject of consecutive
sentences." In re W.H., 274 Kan. at 822-23.
The court then examined the contrast between the sentencing schemes of the KJJC
and KSGA:
"The KSGA expressly empowers a district court to impose consecutive
sentences in K.S.A. 21-4720(b) and K.S.A. 21-4608: 'The sentencing judge shall
otherwise have discretion to impose concurrent or consecutive sentences in
multiple conviction cases. Whenever 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 . . . .' K.S.A. 21-4720(b). 'When separate sentences of
imprisonment for different crimes are imposed on a defendant on the same date,
including sentences for crimes for which suspended sentences, probation or
assignment to a community correctional services program have been revoked,
such sentences shall run concurrently or consecutively as the court directs.' K.S.A.
21-4608(a).
"The KJJC provides no such power and is silent on the question of
consecutive sentences. We agree with W.H. that expressio unius est exclusio
alterius applies. Consecutive sentences are expressly permitted and provided for
in the KSGA of the adult criminal code but that same power is not provided for in
the KJJC. Compare State v. Adam M., 129 N.M. 146, 2 P.3d 883 (Ct. App. 2000);
33
S.G.W. v. People, 752 P.2d 86, 90 (Colo. 1988); In re Christopher V., 207 Conn.
270, 276, 540 A.2d 700 (1988); but see, In re Caldwell, 76 Ohio St. 3d 156, 666
N.E.2d 1367 (1996). We conclude that the Kansas Legislature by its exclusion
regarding consecutive sentences did not authorize the imposition of consecutive
sentences under the KJJC." In re W.H., 274 Kan. at 823.
Inherent in this court's acceptance of the respondent W.H.'s expressio unius est
exclusio alterius argument is a rejection of any argument that the express KSGA statutory
authority for consecutive sentencing somehow could be exported to fill in where the
KJJC was silent—regardless of the two schemes' obvious similarities. This reinforces the
controlling point the court made earlier when it rejected use of the common law as a
filler, i.e., "sentencing of an individual is strictly controlled by statute." Osbey, 238 Kan.
at 288.
Points similar to those established in In re W.H. were made 6 years later by the
Court of Appeals in State v. Crawford, 39 Kan. App. 2d 897, 185 P.3d 315 (2008). There,
Crawford was certified as an adult and pled no contest to several felonies. Because he
was already on probation for juvenile adjudications, the court ordered his adult sentences
to run consecutive to his juvenile sanction. The In re W.H. court had addressed whether
juvenile sentences could be imposed to run consecutive to each other. And Crawford now
addressed the related question of whether an adult sentence could run consecutive to the
previously imposed juvenile sentence.
The Crawford panel answered this question "no." The panel began its analysis by
acknowledging "[w]e must examine statutory concepts for this issue because common-
law principles do not apply. Our Supreme Court has recognized the power to impose
consecutive sentencing is found only within statutory authority and not through common-
law authority." 39 Kan. App. 2d at 899. It then quoted from In re W.H.:
34
"'From its early beginnings, Kansas relied upon statutory authority to impose
consecutive sentencing even though Kansas may recognize that a court had the
common-law authority to impose consecutive sentences. [Citation omitted.] The
common-law rule was abrogated by statute in 1855.'" Crawford, 39 Kan. App. 2d
at 899 (quoting 274 Kan. at 817).
The Crawford panel proceeded to examine all the statutes that authorize
consecutive sentences—which it noted covered three types of cases. K.S.A. 21-4608
(when the court is imposing multiple sentences); K.S.A. 21-4720(b) (as an exercise of
judicial discretion); and K.S.A. 21-4603e(f) (when sentencing for certain specified crimes
committed on or after July 1, 1993). The panel found that none of these statutes
authorizing the imposition of consecutive sentences expressly included probations or
incarcerations arising from juvenile adjudications. It also determined from caselaw that
juvenile adjudications are not the functional equivalents of adult convictions. So the
panel concluded that none of these statutes within the KSGA provided consecutive
sentencing authority for juveniles. 39 Kan. App. 2d at 901.
As for the next possibility—that the KJJC itself provided authority for the
imposition of consecutive juvenile sentences—the Crawford panel again looked to In re
W.H. for guidance. The Crawford panel concluded:
"Such guidance is clear. The rule of expressio unius est exclusio alterius
governs in situations where a trial court utilizes juvenile adjudications for
sentencing purposes.
"Based on the legislature's exclusion of specific language listing juvenile
adjudications [from the KJJC], we conclude that body meant to exclude juvenile
adjudications from cases calling for consecutive adult sentences. The court here
35
had no authority to impose a consecutive sentence. Thus, this was an illegal
sentence." Crawford, 39 Kan. App. 2d at 903.
Accordingly, although Crawford was certified as an adult, the panel vacated his sentence
and remanded for one that was not consecutive to his juvenile sanction. 39 Kan. App. 2d at
904.
To summarize, In re W.H. establishes that juvenile sentences could not be ordered
to run consecutively because there was no statutory authority in the KJJC to do so. And
Crawford logically extends In re W.H. to conclude that an adult sentence could not be
ordered to run consecutive to a juvenile sentence because there was no statutory
authority—in either the KJJC or the KSGA—to do so. Neither In re W.H. nor Crawford
has been overruled by any appellate court.
Moreover, to borrow the majority's use of legislative acquiescence to court
decisions as support for its position, I note that neither In re W.H.'s nor Crawford's result
has been changed by the legislature. Given this, I question whether legislative inaction
truly buttresses the majority's outcome. See U.S.D. No. 501 v. Baker, 269 Kan. 239, 246-
47, 6 P.3d 848 (2000) ("Legislative inaction is not necessarily indicative of legislative
intent.").
While neither In re W.H. nor Crawford directly quotes Osbey, effectively they rely
upon its articulated principle. Moreover, this court has cited Osbey or its principle as
authority in multiple cases—many of which are placed in question by today's majority
opinion. For example, this court quoted Osbey's language in State v. Anthony 274 Kan.
998, 999, 58 P.3d 742 (2002). There, we unanimously rejected a district court's purported
authority to modify a felony DUI sentence after imposition because the KSGA was silent
on that issue. 274 Kan. at 1001-02; see also State v. Miller, 260 Kan. 892, 900, 926 P.2d
36
652 (1996) (same for other felony sentences). In other words, we interpreted KSGA
silence about the power to order sentence modification to mean district courts lack that
authority. And we reached this conclusion even though district courts had modification
authority at common law. See State v. Hughes, 35 Kan. 626, 633, 12 P. 28 (1886).
By not honoring Osbey's declared principle, the majority opinion now casts doubt
on our approach to the KSGA applied in Anthony and other similar cases in the past. It
also invites argument in future cases that district courts possess all sentencing authority—
from the common law or otherwise—that is not expressly addressed by the legislature in
the KSGA.
So I stand by Osbey's declaration. That is, the legislature has reserved to itself the
power for authorizing consecutive sentences—and not just in the KJJC. This principle
applies to adult Quested and the KSGA. And because the legislatively-created KSGA
does not authorize imposing consecutive sentences for his situation, he cannot be so
sentenced. Any fix lies with the legislature.
***
JOHNSON, J., dissenting: I dissent. I can understand the majority's belief that
granting a sentencing judge the authority to impose a sentence to run consecutively to a
prior sentence imposed in a different case, in a different county, on a different day, by a
different judge could fit within the overall statutory sentencing scheme in Kansas. But if
the majority is truly convinced that the legislature intended for a sentencing judge to have
that discretion, our most recent caselaw provides only two available avenues: (1) Find
the consecutive sentencing authority through a reasonable interpretation of the statutory
language; or (2) if the intended provision cannot be found in the statutory language, let
the legislature remedy its omission.
37
"'[A]ppellate courts cannot delete vital provisions or add vital omissions to a
statute if the legislature failed to enact the change as intended under any reasonable
interpretation of the language used, regardless of the legislature's intention. Only the
legislature may remedy these types of error.'" (Emphasis added.) Eastman v. Coffeyville
Resources Refining & Marketing, 295 Kan. 470, 476, 284 P.3d 1049 (2012) (quoting Ft.
Hays St. Univ. v. University Ch., Am. Ass'n. of Univ. Profs, 290 Kan. 446, 464-65, 228
P.3d 403 [2010]).
The majority hints at finding statutory support in the language of K.S.A. 21-
4608(h), but apparently abandons that effort because the parties did not argue the
ambiguities of the provision. That position is somewhat curious, given that the State
urges us to affirm based on State v. Chronister, 21 Kan. App. 2d 589, 903 P.2d 1345
(1995), which in turn relied upon K.S.A. 21-4608(h), as will be discussed later.
Similarly, the majority declines to take the straightforward tack of using the
language of K.S.A. 2006 Supp. 21-4720(b) as a conduit for its perceived legislative intent
that a sentencing judge in one Kansas county has the authority to impose a sentence
consecutive to a sentence previously imposed in another Kansas county. As the majority
recites, the first sentence of that subsection states: "The sentencing judge shall otherwise
have discretion to impose concurrent or consecutive sentences in multiple conviction
cases." (Emphasis added.) K.S.A. 2006 Supp. 21-4720(b). The majority eliminates that
sentence as a source of statutory authority in this case because our prior caselaw, e.g.,
State v. Bolin, 266 Kan. 18, 19, 968 P.2d 1104 (1998), State v. Koehn, 266 Kan. 10, 17,
966 P.2d 63 (1998), and State v. Roderick, 259 Kan. 107, 113-14, 911 P.2d 159 (1996),
has defined the phrase "multiple conviction case" as being multiple counts under one
charging document. Those cases arose under a different context, and one analytical path
would be to limit their effect to the actual holdings in the respective case, much as the
majority attempts to do with those cases that declare that criminal sentencing is strictly
38
controlled by statute. But I believe there are reasons, including a subsequent statutory
change, which indicate that the legislature intended multiple conviction cases under
K.S.A. 2006 Supp. 21-4720(b) to be something different than the "multiple sentences"
scenarios under K.S.A. 21-4608. Otherwise, this would be a concurring opinion. But my
point is that a route more consistent with our recent analytical framework of finding
authority within the statutory language was available to, but rejected by, the majority.
Instead, the majority manufactures a heretofore unknown paradigm, whereby the
courts can discern a common-law sentencing authority that can be applied to partially
modify or intensify the statutory sentence imposed, so long as the added common-law
component has not been explicitly prohibited by the statutory language. Then, making
that hybrid system even more curious, the majority apparently looks to legislative intent
to determine the common-law component that can be added to the statutorily authorized
sentence.
Specifically, the majority says that the sentencing statutes do not expressly address
the situation presented here, i.e., the statutes are silent; that such legislative silence
creates an ambiguity; and that "[w]hen faced with an ambiguity, courts must attempt to
ascertain legislative intent and in doing so may look to cannons of construction,
legislative history, the circumstances attending the statute's passage, the purpose to be
accomplished, and the effect the statute may have under the various constructions
suggested." Slip op. at 8.
I am confused as to why the majority must endeavor to ascertain legislative intent,
if it is going to fill the statutory gap with the common law. The common law is defined as
"[t]he body of law derived from judicial decisions, rather than from statutes or
constitutions; Caselaw." Black's Law Dictionary 334 (10th ed. 2014). The Kansas
Legislature can abrogate the common law, but it cannot make Kansas common law.
39
Moreover, the majority's thought process of using statutory silence to trigger an attempt
to ascertain legislative intent in order to determine the common law that then can be
applied to fill the gap in the legislature's statutory scheme left by legislative silence
strikes me as dizzyingly circular.
Further, I am unclear as to how to apply the canons of construction to silence. For
instance, how does one give common words their ordinary meanings, when there are no
words? How does one consider the effect the statute may have under various
constructions of silence? Perhaps more importantly, if it is necessary to construe statutory
silence to ascertain legislative intent, then the majority's later declaration that the rule of
lenity is inapplicable because there is "no statute to construe in Quested's favor" is
inconsistent, at best. Slip op. at 26-27; see State v. Thompson, 287 Kan. 238, 249, 200
P.3d 22 (2009) (statutory silence and ambiguity is construed in favor of the defendant
pursuant to the rule of lenity). If the majority can construe the statutory silence on
consecutive sentencing in favor of the State's position, is that not construing the silence-
creating statutory ambiguity against the defendant?
In short, it appears to me that all of the majority's discussion of legislative intent is
superfluous and unavailing when considering its proposition that a district judge can
invoke common-law sentencing authority wherever it is not prohibited by statute. The
question is whether the majority's new hybrid sentencing scheme can withstand closer
scrutiny. I think not.
The majority is apparently perplexed that our sentencing statutes appear to provide
disparate treatment to a defendant whose crime spree crossed county lines. It points out
that if Quested had been convicted for all the crimes in one case in one county by one
judge, K.S.A. 2006 Supp. 21-4720(b) would have explicitly authorized consecutive
sentencing. Pointedly, however, all but one member of the majority was involved in the
40
recent unanimous decision in State v. Ardry, 295 Kan. 733, 736-37, 286 P.3d 207 (2012),
which rejected the Court of Appeals' policy argument that enforcing the literal language
of K.S.A. 22-3716(b) to permit the imposition of a lesser sentence for those whose
probation is revoked when such reduction was unavailable to a defendant who did not
violate probation would "allow similarly situated defendants to receive different
sentences." The disparate result argument did not deter the Ardry court from giving effect
to what the legislature actually said. Then, Ardry quite plainly and unequivocally
explained that "only the legislature may decide whether the statutory sentencing scheme
contains inequitable inconsistencies." 295 Kan. at 737. Apparently the current court
majority has changed its mind about which branch of government must fix a perceived
inequitable inconsistency in statutory sentencing provisions. I stand by the holding in
Ardry.
A compelling reason for our prior judicial restraint is that, if the court guesses
wrong about what the legislature truly intended to say, we have invaded the province of
the legislative branch. Thus, for at least three-fourths of a century, this court has declined
to judicially legislate, even to "fix" what some might have perceived to be a legislative
gap, oversight, or silence. See Russell v. Cogswell, 151 Kan. 793, 795, 101 P.2d 361
(1940) ("No matter what the legislature may have really intended to do, if it did not in
fact do it, under any reasonable interpretation of the language used, the defect is one
which the legislature alone can correct."); accord State v. Prine, 297 Kan. 460, 475, 303
P.3d 662 (2013); State v. Comprehensive Health of Planned Parenthood, 291 Kan. 322,
357, 241 P.3d 45 (2010); State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010); State
v. Horn, 291 Kan. 1, 12, 238 P.3d 238 (2010); State v. Sandberg, 290 Kan. 980, 989, 235
P.3d 476 (2010); State v. Johnson, 289 Kan. 870, 879, 218 P.3d 46 (2009); Kenyon v.
Kansas Power & Light Co., 254 Kan. 287, 293, 864 P.2d 1161 (1993); Harris v.
Shanahan, 192 Kan. 183, 196, 387 P.2d 771 (1963); In re Tax Appeal of Graceland
College Center, 40 Kan. App. 2d 665, 679, 195 P.3d 245 (2008).
41
The majority says that it feels compelled by its perceived "practical necessity" to
manufacture its new hybrid sentencing paradigm "in this limited and unique
circumstance." Slip op. at 27. I read that explanation as merely a feeble attempt to excuse
breaking the rules to attain a desired result. The ostensible compulsion to take a limited
and unique analytical pathway is apparently found in the majority's declaration
(unsubstantiated by any evidence in the record) that district courts in Kansas have been
relying on the result in Chronister for 20 years.
To the extent the majority is fearful of opening the floodgates of litigation, I would
respond with the words of retired United States Supreme Court Justice John Paul
Stevens: "The fair administration of justice is never cost-free." Linda Greenhouse,
Speaking Truth to the Supreme Court, N.Y. Times, April, 16, 2015,
http://www.nytimes.com/2015/04/16/opinion/speaking-truth-to-the-supreme-court.html.
To the extent the majority is suggesting that we must make an exception to our
construction canon that forbids adding vital omissions to the sentencing statutes (here,
under the guise of applying common law) in order to promote the system-wide stability
and continuity ordinarily achieved through the doctrine of stare decisis, I draw the
majority's attention to numerous recent decisions in which this court has eschewed
longtime precedent that was in derogation of plain-language statutory interpretation. See,
e.g., Casco v. Armour Swift-Eckrich, 283 Kan. 508, 522-25, 154 P.3d 494 (2007)
(interpreting workers compensation statutes to abrogate parallel injury rule relied upon by
trial courts for 76 years). Those breaks with precedent were justified because they
rectified past judicial legislating in contravention of plain statutory language and our
rules of construction. I decline to crawfish from this court's recent efforts to avoid just
making up things as we go.
42
More importantly, I believe that system-wide stability and continuity is best
maintained when this court consistently follows its logical, tried-and-true analytical
framework, applying it to all issues in all cases, regardless of the individual result that
might obtain in a particular case. The result desired by a majority of this court in an
individual case should not change how the law works in Kansas. Cf. Leaming v. U.S.D.
No. 214, 242 Kan. 743, 761, 750 P.2d 1041 (1988) (Herd, J., dissenting) ("Result-
oriented justice is government of men and not of law, directly contrary to the concept of
the rule of law.").
Particularly troubling to me is the majority's mischaracterization of our past cases
and its use of distorted dicta, taken out of context. For instance, contrary to the majority's
declaration, State v. Finch, 75 Kan. 582, 89 P. 922 (1907), did not consider the effect of
legislative silence, but rather the case struggled to give effect to legislative intent when
faced with restrictive statutory language. In that case, the defendant was convicted of
manslaughter and sentenced to a prison term. While free on appeal bond, Finch
committed other felonies, for which he was convicted and sentenced to another prison
term. The imprisonment in the second case was "to commence at the expiration of his
term in the former case." 75 Kan. at 583. The appeal in the second case was "whether this
cumulative [consecutive] sentence can be sustained." 75 Kan. at 583. The court noted the
contention "that under the common law the rule is that successive sentences are
concurrent and not cumulative," and "that a cumulative sentence in this state must be
justified, if at all, under section 5695 of the General Statutes of 1901." 75 Kan. at 583-84.
The State's problem with the consecutive sentence statute in Finch was that it
provided for consecutive sentences for two or more offenses at the same term of court,
but Finch's second sentence was at a subsequent term of court. But the Finch court noted
that the legislative policy was to increase punishment for multiple offenses "without
regard to strict technicality," so that the courts must "conform the procedure as to make
43
the purpose of the [statutory] law effective." 75 Kan. at 584. In other words, the Finch
court broadly construed the statute authorizing consecutive sentencing to apply to Finch's
multiple sentences by considering the "same term of court" language to be a technicality
that it must overlook in order to give effect to the intent of the legislative enactment. 75
Kan. at 584. To me, giving effect to the legislative intent of a statute is different than
applying the common law.
Likewise, in Beck v. Fetters, 137 Kan. 750, 22 P.2d 479 (1933), Beck was
sentenced to the county jail for violating the liquor laws and, while an appeal was
pending in that first case, he committed another offense. The sentencing court in the
second case did not refer to the first case or state whether the second sentence was to be
served concurrently or consecutively to the first sentence. The issue on appeal was stated
as follows: "'Where two sentences are imposed by the same judge in the same court one
after the other, at different terms, and there is nothing in the sentences as to whether they
are to run consecutively or concurrently to each other, will the sentences run
consecutively or concurrently?'" Beck, 137 Kan. at 751. The Beck court noted that "[t]he
common-law rule and many of the earlier decisions following the rule are to the effect
that if several sentences of imprisonment are imposed upon a person, covering the same
period of time, they will run concurrently unless the court expressly directs that they be
served consecutively." 137 Kan. at 751-52. The opinion then quoted the statute providing
for consecutive sentencing where a person is convicted of two or more offenses before
sentence is pronounced on any of them, R.S. 62-1512, and noted that the provisions
"indicate the legislative purpose to depart from the rule of the common law." 137 Kan. at
752. In other words, Beck had no need to ruminate on whether the sentencing judge had a
common-law authority to impose a consecutive sentence, because there was statutory
authority. The only question was whether the statutorily authorized consecutive sentence
for the second crime was applicable in the absence of a judicial pronouncement to that
effect.
44
Beck concluded that the statutorily authorized consecutive sentence was
mandatory, declaring that "the court must render judgment in conformity with the
statutory policy and is without authority to adjudge that it shall run concurrently." 137
Kan. at 752-53. That declaration not only refutes the majority's suggestion that the court
was acknowledging a common-law authority, it also torpedoes the notion that judges
possess the discretion to impose either concurrent or consecutive sentences in all criminal
cases, as will be discussed below in conjunction with State v. Reed, 237 Kan. 685, 687,
703 P.2d 756 (1985).
The majority's creative distortion of gratuitous dicta from prior cases to support its
hybrid theory of statutory interpretation is particularly obvious and troubling with respect
to its representation of the holding in Burns v. State, 215 Kan. 497, 524 P.2d 737 (1974).
Burns pled guilty to several counts—apparently from a single charging document—in
return for the county attorney's withdrawal of a motion for enhanced sentencing under a
habitual criminal act. At sentencing on all counts at the same time, the county attorney
advised the court of Burns' prior criminal history, prompting the court to run the sentence
on one of the counts consecutive to the other counts. Burns subsequently filed a motion to
vacate sentence under K.S.A. 60-1507, and in connection therewith testified that his trial
counsel had told him that the plea bargain included the prosecutor's promise not to
present Burns' prior criminal history to the sentencing court, i.e., the State had breached
the plea agreement. His trial counsel testified that he did not recall the prosecutor
promising not to reveal the criminal history. After the district court found in favor of the
State, Burns appealed, contending that "he was misled by his court-appointed attorney as
well as betrayed by the county attorney." 215 Kan. at 499.
This court first characterized that "Burns' complaint on appeal is simply that the
court did not believe his testimony that there was a promise not to reveal his past criminal
45
record to the court," and opined that assessing witness credibility was certainly within the
trial court's discretion. 215 Kan. at 499. The court then dealt with Burns' ineffective
assistance of counsel claim, before addressing the contention that the State had breached
the plea agreement. That discussion contains the sentence upon which the majority hangs
its hat. The entire discussion was as follows:
"Plea bargaining plays an important role in the effective administration of
criminal justice. We approved the application of the ABA Standards for Criminal
Administration as they relate to plea bargaining in State v. Byrd, 203 Kan. 45, 453 P.2d
22 [1969]. The standards provide such agreements are not binding upon the sentencing
court. No agreement to withhold Burns' past criminal record, even if made, could have
bound the county attorney or the sentencing court to those terms. The sentencing judge
may and should ask for a pre-sentence report which would include past convictions,
regardless of whether the habitual criminal act was to be imposed. [Citation omitted.] The
authority of the court in ordering consecutive or concurrent sentences for convictions of
two or more offenses at the same or separate times is discretionary with the court.
(K.S.A. 1973 Supp. 21-4608, formerly K.S.A. 62-1512.) We find no abuse of discretion
in the sentences imposed." 215 Kan. at 500.
Returning to the majority's characterization of the Burns opinion, the majority first
notes that the 1969 version of K.S.A. 21-4608 "did not address the power to impose
consecutive sentences in cases where sentencing occurred on different days." Slip op. at
17. Then, the majority states as follows:
"Despite this silence, in Burns v. State, 215 Kan. 497, 500, 524 P.2d 737 (1974),
this court recognized '[t]he authority of the court in ordering consecutive or concurrent
sentences for convictions of two or more offenses at the same time or separate times is
discretionary with the court.' (Emphasis added.) 215 Kan. at 500 (citing K.S.A. 1973
Supp. 21-4608). This statement seems to continue the longstanding recognition that a
judge retains discretion to impose a consecutive sentence in situations where a statute is
46
silent, as long as that authority is consistent with the legislative policy reflected in the
sentencing statutes." Slip op. at 17.
First, Burns' sentences for more than two offenses were ordered at the same time.
Accordingly, the phrase the majority points to—"or separate times"—has no bearing on
the actual holding in Burns, making it gratis dictum. See Black's Law Dictionary 549
(10th ed. 2014) (defining gratis dictum as a court's stating a legal principle more broadly
than necessary to decide case).
More importantly, however, Burns' declaration about judicial discretion is directly
attributable to K.S.A. 1973 Supp. 21-4608, which stated: "(1) When separate sentences
of imprisonment for different crimes are imposed on a defendant on the same date, . . .
such sentences shall run concurrently or consecutively as the court directs." (Emphasis
added.) In other words, the sentencing circumstance presented in Burns was completely
covered by expressed statutory authority—no silence, no ambiguity, no gap to fill, no
room for applying the common law. Accordingly, Burns was actually recognizing fairly
recent explicit statutory authority, rather than acknowledging any kind of "longstanding"
common-law discretion. The majority's cherry-picked superfluous phrase from Burns
simply cannot carry the load which the majority heaps upon it.
Finally, In re W.H., 274 Kan. 813, 817, 57 P.3d 1 (2002), noted that "[f]rom its
early beginnings, Kansas relied upon statutory authority to impose consecutive
sentencing." (Emphasis added.) Curiously, the opinion added the dictum that "Kansas
may recognize that a court had the common-law authority to impose consecutive
sentences," citing to Beck and Finch. 274 Kan. at 817. But, as noted above, those cases
held that consecutive sentencing was a product of statutory policy, in derogation of the
common law. Then, just as curiously, the opinion declares that "[t]he common law rule
was abrogated by statute in 1855," and quotes a statute virtually identical to those in Beck
47
and Finch. 274 Kan. at 817. What is crystal clear is that In re W.H. decided that the
district court had no authority to impose consecutive sentencing in that context because
there was no statutory authority to do so, either expressed or implied. Notwithstanding its
finding that the Kansas Juvenile Justice Code (KJJC) "is silent on the question of
consecutive sentences," 274 Kan. at 823, In re W.H. did not even discuss the possibility
of filling an ambiguity-by-silence statutory gap with common-law authority.
In short, I have been unable to locate a prior Kansas case in which the sentencing
court explicitly relied upon common-law authority to impose consecutive sentences in
any case, much less in the different case/different day/different county circumstance.
Rather, the courts have broadly construed statutory provisions to give effect to what they
referred to as "statutory policy." E.g., Beck, 137 Kan. at 753. And, again, a court broadly
construing and applying a statute to give effect to perceived legislative intent is the
antithesis of applying the common law, which is derived by judicial decisions, not
legislative intent.
I will forego any lengthy discussion about the majority's reliance on the United
States Supreme Court's interpretation of federal criminal law, or other states' handling of
their own criminal law, because that discussion has no more bearing on Kansas common
law than it does on the price of wheat in Kansas. Moreover, as noted in In re W.H. and
acknowledged by the majority, the law of consecutive sentencing in Kansas was the
product of statutory law even before statehood in 1861. See 1855 Laws of the Kansas
Territory, ch. 54, § 9 (providing for consecutive sentencing when defendant convicted of
two or more offenses before being sentenced on either offense). Surely, then, we need not
ruminate on English common law in an area of the state law that has been controlled by
statute throughout the state's entire period of existence.
48
Next, I have multiple disagreements with the majority's stare decisis rationale
based on Chronister. My initial concern is that the majority appears to have manufactured
a new definition of the stare decisis doctrine. In the case it cites, Crist v. Hunan Palace,
Inc., 277 Kan. 706, 715, 89 P.3d 573 (2004), this court quoted from Samsel v. Wheeler
Transport Services, Inc., 246 Kan. 336, 356, 789 P.2d 541 (1990), overruled on other
grounds Bair v. Peck, 248 Kan. 824, 844, 811 P.2d 1176 (1991), as follows, with
emphasis added: "'It is recognized under the doctrine of stare decisis that, once a point of
law has been established by a court, that point of law will generally be followed by the
same court and all courts of lower rank in subsequent cases where the same legal issue is
raised.'" The majority acknowledges that this court has not decided the issue presented
here, and, given that we are the court of last resort with respect to Kansas law, we are not
bound by any higher court's decision.
Granted, the majority attempts to sidestep its aberrant use of the stare decisis
doctrine by saying that it understands that we are not bound by a Court of Appeals
decision. But re-labeling its argument as "following precedent" should not fool anyone.
Moreover, at least since 2008, district courts should have been on notice that the
holding in Chronister was suspect, at best. In State v. Crawford, 39 Kan. App. 2d 897,
897-98, 185 P.3d 315 (2008), a panel of the Court of Appeals, relying on our precedent,
In re W.H., clearly declared that "[a] court's power to impose consecutive sentences flows
from statutory authority," and that because none of the consecutive-sentence statutes in
the adult criminal code expressly included the circumstance in that case, "the district
court had no authority to impose a consecutive adult sentence." (Emphasis added.)
The Court of Appeals panel in this case distinguished Crawford by the factual
distinction that the prior sentence, to which the adult sentence was imposed
consecutively, was a juvenile adjudication. State v. Quested, No. 106,805, 2012 WL
49
3000385, at *1 (Kan. App. 2012) (unpublished opinion), rev. granted October 17, 2013.
But that was a distinction without a difference. Crawford was construing the adult
sentencing statutes to see if the adult sentence could be imposed consecutively.
Determining that an adult sentence cannot be imposed consecutive to a prior juvenile
adjudication because no statute says it can be is no different than saying an adult sentence
cannot be imposed consecutive to another adult sentence imposed in a different county, in
a different case, on a different day because no statute says it can be. The point is that
Crawford refused to acknowledge or apply any common-law authority for adult
consecutive sentencing in derogation of the statutory sentencing scheme.
Perhaps more importantly, the majority appears to read into Chronister a holding
that will further its objective of finding a heretofore undiscovered hybrid common-law,
statutory silence-triggering, gap-filling sentencing authority. I do not see any mention of
statutory silence or common law in the Chronister opinion. I do see citation to and
discussion of K.S.A. 1994 Supp. 21-4608(h), K.S.A. 1994 Supp. 21-4608(a), and the
1982 amendment to K.S.A. 21-4608, together with the presumption that the legislature is
presumed to intend that a statute be given a reasonable construction, so as to avoid
unreasonable or absurd results. 21 Kan. App. 2d at 593-94. That is followed by opining
that "[i]t would be illogical to provide the sentencing benefit Chronister asserts merely
because he committed the third crime against E.C. in Harvey County rather than in
Sedgwick County or in another state or federal jurisdiction." 21 Kan. App. 2d at 593. The
opinion certainly reads as if the panel is giving effect to legislative intent, rather than
court-made common law.
I do acknowledge, however, that Chronister recites the broad statement that
"[p]rior to 1982, the imposition of concurrent or consecutive sentences in all criminal
cases was placed within the sound discretion of the trial court." 21 Kan. App. 2d at 593
50
(citing Reed, 237 Kan. at 687). But Chronister's use of the Reed language is untenable for
several reasons.
First, and foremost, the language Chronister pulled from Reed was pure dictum;
the common-law sentencing discretion of the district court—whether before or after
1982—was simply not an issue in Reed. The opinion stated that the "sole issue presented"
in Reed was "whether mandatory consecutive sentences were required under K.S.A. 1984
Supp. 21-4608(4), because the defendant committed two felonies after having been
released on bond pending trial in the first case." 237 Kan. at 686. In other words, Reed
ultimately found that the consecutive sentences in that case were statutorily mandated,
rather than finding that the sentencing judge had a common-law power to impose them at
the court's discretion.
Recently, this court clarified that "[d]icta in a court opinion is not binding, even on
the court itself." Law v. Law Company Building Assocs., 295 Kan. 551, Syl. ¶ 1, 289 P.3d
1066 (2012). Surely, then, if this court's dictum in Reed would not be binding on this
court, as a matter of law, then the mere fact that a Court of Appeals decision has cited to
the dictum cannot elevate it to the status of being mandatory authority for us. That would
be contrary to the rationale recited in Law, i.e., "because the court should consider the
issue in light of the briefs and arguments of counsel when the question is squarely
presented for decision." 295 Kan. 551, Syl. ¶ 1.
Further, the out-of-context cite to only part of a sentence from Reed distorts the
point being made in that prior case. The entire sentence reads as follows: "It should be
noted that under the pre-1982 statute, the imposition of concurrent or consecutive
sentences in all criminal cases was placed within the sound discretion of the trial court,
and mandatory consecutive sentences were not required in any case." (Emphasis added.)
Reed, 237 Kan. at 687. And that sentence followed a recitation of the pre-1982 version of
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K.S.A. 21-4608(2), which provided that any person committing a crime while on parole
or conditional release "shall serve such sentence concurrently or consecutively with the
term or terms under which the person was released, as the court directs." (Emphasis
added.) 237 Kan. at 687. In other words, the pre-1982 discretion to not impose a
consecutive sentence came from the prior statute, not the common law.
Then, following the cited sentence, Reed explained how the legislature had
responded to public concern about felonies being committed by persons who were
released on bond from a prior felony case by making consecutive sentencing mandatory
in such a circumstance. The point the Reed court was making was that, prior to the 1982
statutory amendments making consecutive sentences mandatory, the district court had the
discretion under the express language of K.S.A. 21-4608(2) to impose the statutorily
authorized concurrent sentence. The point was not that prior to 1982 the sentencing
judges were imposing consecutive sentences for crimes committed on bond pursuant to
any type of common-law authority.
Moreover, Reed's overbroad statement that, prior to 1982, the trial court had
discretion to impose either a concurrent or consecutive sentence "in all criminal cases,"
237 Kan. at 687, is simply incorrect. (Emphasis added.) We see that notion refuted by the
1933 holding in Beck, where the court found consecutive sentencing to be mandatory,
pursuant to statutory policy, and specifically declared that the district court in that case
had no discretion or authority to impose a concurrent sentence. 137 Kan. at 752-53.
Lastly, Reed was filed on July 26, 1985, and later that same year, on December 6,
1985, the Kansas Supreme Court filed its opinion in State v. Osbey, 238 Kan. 280, 710
P.2d 676 (1985). Osbey declared that "[i]n Kansas, sentencing of an individual is strictly
controlled by statute." 238 Kan. at 288. As in Reed, Osbey did not cite to any authority
for its sweeping declaration. But subsequent Kansas Supreme Court opinions over the
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succeeding decades would repeat that rule. See State v. McCarley, 287 Kan. 167, 174,
195 P.3d 230 (2008) ("[T]he sentencing of a criminal defendant is strictly controlled by
statute in Kansas."); State v. Martin, 285 Kan. 735, 738, 175 P.3d 832 (2008) ("The
sentencing of a criminal defendant is strictly controlled by statute in Kansas."); State v.
Anthony, 274 Kan. 998, 999, 58 P.3d 742 (2002) ("The sentencing of a criminal
defendant is strictly controlled by statute in Kansas."); State v. Vanwey, 262 Kan. 524,
Syl. ¶ 4, 941 P.2d 365 (1997) ("The sentencing of a criminal defendant is strictly
controlled by statute in Kansas."); and State v. Saft, 244 Kan. 517, Syl. ¶ 1, 769 P.2d 675
(1989) ("The sentencing of a criminal defendant is strictly controlled by statute in
Kansas.").
If a judge is employing a common-law power to impose a portion of a sentence
that is not specifically or even impliedly authorized by any sentencing statute, then that
criminal defendant's sentencing has not been strictly controlled by Kansas statutes. The
sentence has been partly controlled by statute and partly controlled by common law.
The majority's apparent interpretation of "strictly controlled" is that the statute
only controls the portion of the sentence which it specifically authorizes or specifically
prohibits. But, of course, that renders superfluous the modifier, "strictly." In all areas of
the law, a specific statutory provision that authorizes or prohibits an action will
necessarily control the matter in court, even if we have not declared that area of the law
as being "strictly controlled" by statute. I find such creative redefining of plainly
understood words and phrases to be contrary to the transparency for which this court has
strived in recent years. Moreover, one can only imagine the discomfort of those
legislators who might realize that Kansas common law is what the Kansas Supreme Court
says it is, so that the majority's new paradigm means that whenever the legislature fails to
prohibit something, the Kansas Supreme Court will be able to "fill the gap" with its own
view of the "common law."
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I submit that the rule that our statutes strictly control criminal sentencing relieves
the legislature of the burden of specifically listing all unauthorized sentences, especially
those that might have emanated from the common law. The sentencing statutes should
not have to tell a sentencing judge everything that he or she cannot do.
But perhaps more to the point, one cannot view the comprehensive nature of the
new Kansas Criminal Code and Kansas Code of Criminal Procedure, adopted in 1969,
without believing that the legislature intended to occupy that entire field. See Clark, State
Control of Local Government in Kansas: Special Legislation and Home Rule, 20 Kan. L.
Rev. 631, 672 (1972) ("The comprehensiveness of the state Criminal Code, coupled with
the elaborate procedural safeguards given to defendants by the equally comprehensive
Code of Criminal Procedure, suggests that the legislature has preempted the criminal law
field, except for matters such as minor traffic violations."). Additionally, in K.S.A. 21-
3102(3), the legislature specifically provided that the new criminal code "does not affect
the power of a court to punish for contempt or to employ any sanction authorized by law
for the enforcement of an order or a civil judgment or decree." The converse of that
statement is that the new code did affect the power of the court to punish for crimes under
the code.
I do not quibble with the majority's quote from Professor Wilson which declares
that one must make reference to the common law in order to understand legislative intent.
In fact, the legislature has specifically said that the common law has a place in the
comprehensive criminal code. See K.S.A. 21-3102(1) (where statutory crime is not
defined by that statute, common law definition shall be applied); K.S.A. 77-109 (common
law as modified by constitution, statute, and judicial decisions shall remain in force in aid
of the general statutes of the state). But the discretion retained by the sentencing courts
must be authorized by the statutes.
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Then, some 23 years after adopting the comprehensive criminal code, the
legislature passed the comprehensive Kansas Sentencing Guidelines Act, K.S.A. 21-4701
et seq., which made sweeping changes in the law of sentencing, principally eliminating
the exercise of most judicial discretion. One would have to view that action as the
legislature not only acquiescing to, but embracing, our caselaw declaring that the
sentencing of a criminal defendant is strictly controlled by statute, not by common law.
Finally, I offer the suggestion that the majority's citation to K.S.A. 21-4601 for the
legislative directive that the statutory article on sentencing "shall be liberally construed"
to effect its purposes actually undermines the majority's argument. That statute tells me
that the legislature wants the courts to liberally construe its statutory language to make
the legislative enactments applicable, rather than strictly construing the statutes to make
them inapplicable and then fill in the gaps with court-made common law. Moreover,
while a certain amount of synergy between statutory law and common law may be
desirable, I would not destroy the distinction between the two.
In short, I would not obfuscate the law in this state simply to correct a perceived
legislative oversight, when the legislature can make its own corrections, if that is indeed
what it intended. I would reverse Quested's consecutive sentencing.
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