State v. Baughman

NOT DESIGNATED FOR PUBLICATION
No. 124,388
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DAVID A. BAUGHMAN,
Appellant.
MEMORANDUM OPINION
Appeal from Neosho District Court; DARYL D. AHLQUIST, judge. Opinion filed October 28,
2022. Remanded with directions.
Submitted by the parties for summary disposition under K.S.A. 2021 Supp. 21-6820(g) and (h).
Before ARNOLD-BURGER, C.J., GARDNER and CLINE, JJ.
PER CURIAM: David A. Baughman appeals his sentence, asserting the district
court incorrectly included a Board of Indigents' Defense Services (BIDS) application fee
in the journal entry of judgment and the journal entry reflects the incorrect statutory
subsection as the basis of his conviction. We granted his motion for summary disposition
under Supreme Court Rule 7.041A (2022 Kan. S. Ct. R. at 48). The State did not respond.
Finding the journal entry of judgment differs from the district court's pronouncement
from the bench, we remand with instructions to issue a nunc pro tunc journal entry.
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FACTUAL AND PROCEDURAL HISTORY
In March 2021, a jury convicted Baughman of two counts of distribution of
methamphetamine in the amount of at least 3.5 grams but less than 100 grams, a severity
level 2 drug felony, for offenses committed in February 2016. The district court
sentenced Baughman to 92 months' imprisonment for each count, with the sentences to
run concurrent. At sentencing, the district court explained:
"Mr. Baughman was convicted by a jury of two counts. The primary offense was
distribution of methamphetamine, in violation of K.S.A. 21-5705(a)(1)(c)(1). This is a
severity level 2 nonperson drug felony. . . .
....
"Court will order court costs in the amount of $193, a DNA database fee—I will
waive the DNA database fee given the fact that he's going to be incarcerated for a lengthy
period of time. The Court will order the KBI lab fee in the amount of $400, the
booking/fingerprint fee in the amount of $45. The Court will also waive the BIDS
application fee and the court-appointed attorney's fees in the amount of $3,900, again,
because of the extensive length of the incarceration."
The subsequent sentencing journal entry shows the district court ordered
Baughman pay $100 for the BIDS application fee, but it does not reflect that the judge
waived the fee. In addition, both the journal entry of judgment and the judge's
pronouncement from the bench at sentencing reflect that the jury convicted Baughman of
distribution of methamphetamine under K.S.A. 2015 Supp. 21-5705(a)(1)(c)(1), a non-
existent subsection. But based on the language of the complaint, instructions, and the
journal entry, the jury convicted Baughman of distribution of methamphetamine, K.S.A.
2015 Supp. 21-5705(a)(1)—a severity level 2 drug felony, K.S.A. 2015 Supp. 21-
5705(d)(3)(C).
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Baughman timely appeals, noting these discrepancies.
ANALYSIS
"Clerical mistakes in judgments, orders or other parts of the record and errors in
the record arising from oversight or omission may be corrected by the court at any time
and after such notice, if any, as the court orders." K.S.A. 2021 Supp. 22-3504(b).
Baughman properly points out two errors that apparently eluded the judge, the
prosecutor, and Baughman's counsel.
First, a district judge's oral pronouncement of a sentence controls over a
conflicting written journal entry. Any journal entry that varies from a judge's oral
pronouncement during sentencing is a clerical error that the court may correct at any time
State v. Edwards, 309 Kan. 830, 835-36, 440 P.3d 557 (2019).
Here, the journal entry of judgment fails to reflect that the court waived the BIDS
application fee, as allowed by K.S.A. 2021 Supp. 22-4529. The journal entry must reflect
the judge's order from the bench.
The journal entry also reflects the incorrect statutory subsection as the basis of
Baughman's conviction. But with this error, the journal entry of judgment and the judge's
pronouncement from the bench at sentencing both convey that the jury convicted
Baughman of distribution of methamphetamine under K.S.A. 2015 Supp. 21-
5705(a)(1)(c)(1). But such statutory subsection does not exist. To add to the confusion,
although the original complaint alleges that Baughman violated K.S.A. 2011 Supp. 21-
5705(a)(l)(c)(l), the first amended complaint alleges a violation of K.S.A. 2011 Supp. 21-
5705(a)(l)(d)(5)(B) and the second amended complaint alleges a violation of 2011 Supp.
21-5705(a)(l)(c)(l). So even though the State appears to have toyed with the statutory
citations several times, none of these statutory subsections exist as cited. The correct
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statutory subsection for Baughman's crime of conviction (distribution of
methamphetamine) is K.S.A. 2015 Supp. 21-5705(a)(1), with the severity level assigned
at K.S.A. 2015 Supp. 21-5705(d)(3)(C)—a severity level 2 drug felony. The prior version
of the statute, K.S.A. 2010 Supp. 21-36a05 contained the violation at subsection (a)(1)
and the severity level at subsection (c)(1). No one seems to have noticed these errors,
perhaps because the actual description of the conduct constituting the violation has
always been consistent and the base statutory violation, K.S.A. 2015 Supp. 21-
5705(a)(1), is correct. Baughman does not allege any prejudice from the incorrect
statutory references. "Error in the citation or its omission shall be not ground for
dismissal of the complaint, information or indictment or for reversal of a conviction if the
error or omission did not prejudice the defendant." K.S.A. 22-3201(b).
For these reasons, we must remand Baughman's case to the district court with
instructions to issue a nunc pro tunc journal entry noting the assessment but waiver of the
$100 BIDS application fee and the proper statutory subsection that is the basis for
Baughman's convictions of Count 1 and Count 3.
Remanded with directions.
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