Correcting an Illegal Sentence Includes Determining Concurrent vs. Consecutive Sentencing

State v. Jamerson, No. 115,629 (Kan. Jan. 25, 2019)

Issue: On a motion to correct an illegal sentence, does the resentencing court have the authority to modify the duration and concurrent nature of the legal portions of the sentence, while addressing the illegal portion of a sentence?

Answer: The court may modify the concurrent nature of the legal portions of the sentence when resentencing, but it may not change the duration of a legal sentence.

Facts: Jamerson originally received three sentences: an illegal base sentence, an illegal nonbase sentence, and a legal nonbase sentence.  The sentencing court ordered the legal nonbase sentence to run consecutively to the illegal base sentence, and the illegal nonbase sentence to run concurrently with both.  Jamerson subsequently moved to correct his illegal base sentence because the court incorrectly determined his criminal history.  At resentencing, the court discovered that the original sentencing court had also erroneously applied his criminal history to his two nonbase sentences.  Thus, in addition to modifying the length of all three sentences, the resentencing court ordered all three to run consecutively.

Discussion: The Kansas Supreme Court held that the resentencing court only possessed jurisdiction to modify the original illegal sentences. This jurisdiction includes deciding whether the sentences should run concurrently or consecutively. The Court relied heavily on State v. Morningstar to reach its conclusion.  However, the Kansas Supreme Court stated that the resentencing court did not have the authority to modify the original duration of legal sentence.

Key Authorities:
State v. Guder, 293 Kan. 763, 267 P.3d 751 (2012) (discussing the court’s authority to modify a nonvacated portion of a sentence on remand from an appellate court).

State v. Morningstar, 299 Kan. 1236, 329 P.3d 1093 (2014) (providing that a resentencing court has the authority to determine whether the new sentence will run concurrently or consecutively to the defendant’s other prison terms).

K.S.A. § 22-3504 (providing the authority for correcting an illegal sentence).