Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.
Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., HILL and ARNOLD–BURGER, JJ.
State law provides that any person who is convicted of a crime while on parole for a felony “shall serve the sentence consecutively” to the terms under which the person was on parole. K.S.A.2011 Supp. 21–6606(c). In addition, time served on parole or postrelease supervision cannot be credited as service on the aggregate sentence. K.S.A.2011 Supp. 21–6606(f)(5). Brewell Currie was on felony parole when he committed a new crime of possession of marijuana. Although the district judge seemed to suggest in his oral sentencing ruling that Currie may get dual credit for time served on his new crime and the paroled crime, the court clarified any confusion in its journal entry of sentencing. Currie filed a motion to correct journal entry, arguing the journal entry of judgment did not match the district court's pronouncement from the bench and the journal entry must be corrected to align with the oral pronouncement, significantly reducing Currie's sentence. Because the court was required to order the sentences to run consecutively, we find no error in the district court's clarifying journal entry and affirm its order denying Currie's motion.
Factual and Procedural History
Currie pleaded no contest to possession of marijuana, an enhanced drug severity level 4 nonperson felony due to a prior conviction. Pursuant to a plea agreement, the district judge granted him a downward durational departure sentence from a standard 40 months to 20 months. According to the presentence report in the case, Currie was on felony postrelease at the time this offense occurred. In addition, the presentence investigation report noted that the sentence was required to run consecutive to his felony parole pursuant to K.S.A.2011 Supp. 21–6606. At sentencing, the State requested that Currie's sentence “run consecutive, by operation of law, to any other sentences, to include his parole time, or post-release time.” Currie did not object.
At the sentencing hearing Currie asked the district judge whether he would receive jail credit. The district judge answered, “You'll get jail credit for all the time ... you've served in county, as a result of this charge.” The district judge next stated that he did not know what that amount would be but that Currie's attorney and the prosecuting attorney would figure it out and note any jail credit on Currie's sentencing document. The district judge next stated, “[W]ith a 20 percent good-time credit, you might not spend any time in the Department of Corrections [ (DOC) ], but that's not going to be th—what I'm going to do, today. That's up to them.”
On the journal entry of judgment the State indicated that Currie had 429 days' jail credit and noted: “but he does not get credit if time charged by DOC as to defendant's post-release.” The State also wrote on the journal entry: “This sentence will run consecutive to any post-release/parole time. The defendant does not get double credit for any DOC holds.” The district judge, the prosecuting attorney, and Currie's attorney signed the journal entry, the same day as the sentencing.
After the journal entry was filed, Currie filed a motion to correct journal entry, arguing the district judge, through his orders from the bench, had not ordered that Currie's sentence would run consecutive to any postrelease/parole time, and thus the journal entry must reflect the judge's oral pronouncement from the bench. Following the submission of briefs on the issue, the district court held a hearing on Currie's motion. At the hearing, the district court found the language at issue on Currie's journal entry of sentencing was a correct recitation of the applicable law and denied Currie's motion to have the language stricken. Currie filed a timely notice of appeal.
Standard of review
Whether a sentence is illegal is a question of law over which the appellate court has unlimited review. State v. Taylor, 299 Kan. 5, 8, 319 P.3d 1256 (2014). Additionally, interpretation of a sentencing statute is a question of law, and the standard of review is unlimited. State v. Phillips, 299 Kan. 479, 494, 325 P.3d 1095 (2014).
The district court did not err when it denied Currie's motion.
A sentence is effective when pronounced from the bench; a sentence in a criminal case “ ‘does not derive its effectiveness from the journal entry. A journal entry that imposes a sentence at variance with that pronounced from the bench is erroneous and must be corrected to reflect the actual sentence imposed.’ “ State v. Mason, 294 Kan. 675, 677, 279 P.3d 707 (2012). When a district court omits whether the sentences are run consecutively or concurrently, an order nunc pro tunc is the correct method to remedy the omission. See Love v. State, 280 Kan. 553, 562–63, 124 P.3d 32 (2005).
Currie argues the journal entry is at variance with the sentence pronounced from the bench because the district judge did not specifically order that (1) jail credit was unavailable to Currie if it was charged to his postrelease by the DOC and (2) Currie's sentence would run consecutively to any postrelease/parole time. Thus, Currie contends the handwritten notations on his journal entry must be stricken and his prison sentence adjusted accordingly.
For support Currie cites Abasolo v. State, 284 Kan. 299, 306, 160 P.3d 471 (2007), where the Kansas Supreme Court determined that the district court erred when it sentenced the defendant to 52 months' incarceration as stipulated in the journal entry when the sentenced pronounced from the bench was only 36 months' incarceration. In Abasolo, the district court had the authority to sentence the defendant to 36 months' incarceration rather than 52, so the pronouncement from the bench controlled. 284 Kan. at 305, 160 P.3d 471.
Here, as the State correctly points out, the district court did not have the authority to sentence Currie such that his prison sentence would run concurrent to his postrelease time. K.S.A.2011 Supp. 21–6606(c) provides that any person who is convicted of a crime while on parole for a felony “shall serve the sentence consecutively” to the terms under which the person was on parole. In addition, K.S.A.2011 Supp. 21–6606(f)(5) prohibits the court from crediting parole time toward the aggregate sentence in such a situation:
“When consecutive sentences are imposed which are to be served consecutive to sentences for which a prisoner has been on probation, assigned to a community correctional services program, on parole or on conditional release, the amount of time served on probation, on assignment to a community correctional services program, on parole or on conditional release shall not be credited as service on the aggregate sentence in determining the parole eligibility, conditional release and maximum dates, except that credit shall be given for any amount of time spent in a residential facility while on probation or assignment to a community correctional residential services program.”
Therefore, the State correctly reasons that Abasolo is inapplicable.
Instead, to support its position that the district court did not err in denying Currie's motion, the State cites to Love v. State, 280 Kan. 553, 124 P.3d 32 (2005), where the district court failed to announce whether the defendant's sentence would run concurrent or consecutive to his postrelease time. The district court issued an order nunc pro tunc indicating the sentences were to run consecutive to each other; the defendant objected and the district court overruled. On appeal, the Kansas Supreme Court held the sentences were mandated to run consecutive to each other pursuant to K.S.A. 21–4608(c) (now K.S.A.2011 Supp. 21–6606 [c] ), so even if the district court failed to announce it, the sentences must run consecutively. 280 Kan. 561–62. The Kansas Supreme Court determined the method chosen by the prosecutor and the resulting nunc pro tunc order entered by the trial court constituted the appropriate remedy to use under the facts of Love. 280 Kan. at 563, 124 P.3d 32.
As was the case in Love, here Currie's sentences were statutorily mandated to run consecutively. See K.S.A.2011 Supp. 21–6606(f)(5). Thus, while the district court failed to specify the nature of Currie's sentence when announcing it from the bench, the subsequent journal entry reflected a correct recitation of the applicable law. Because the journal entry effectively represents a nunc pro tunc clarification of Currie's statutorily mandated sentence, the district court did not err when it denied Currie's motion to correct his journal entry.