Conflict or Cooperation? Mandatory Consecutive Sentencing Statutes Declared Harmonious

Author: Besty Donahue, Staff Editor

State v. Vaughn, No. 121,340 (Kan. Ct. App., Aug. 14, 2020).

Issue: Kan. Stat. Ann. § 21-6606(d)[1] mandates that individuals convicted of felonies while on bond release for a prior felony shall serve the sentences for each felony consecutively, unless, as provided by Kan. Stat. Ann. § 21-6819(a),[2] mandatory application of a consecutive sentence would result in manifest injustice.  Kan. Stat. Ann. § 21-6604(f)(4) provides that, if an offender commits a new felony while on release for a prior felony, “a new sentence may be imposed consecutively pursuant to the provisions of [Kan. Stat. Ann. § 21-6606].”[3]  Does Kan. Stat. Ann. § 21-6604(f)(4) make a consecutive sentence permissive and within the court’s discretion?

Answer: No, consecutive sentences are mandatory under Kan. Stat. Ann. § 6606(d).  Kan. Stat. Ann. § 21-6606(d) and Kan. Stat. Ann. § 21-6604(f)(4) do not conflict, rather Kan. Stat. Ann. § 21-6604(f)(4) defers to Kan. Stat. Ann. § 21-6606(d). 

Facts: Rex Vaughn pleaded guilty to committing a felony while out on felony bond.  At sentencing, Vaugh asked that the two sentences run concurrently.  The District Court held that the sentences should run consecutively.  Vaughn appealed, claiming the court had discretion to sentence him concurrently.

Discussion: The word “may” in Kan. Stat. Ann. § 21-6604(f)(4) gives courts discretion to impose a prison sentence for crimes not presuming a prison sentence; it did not give discretion to assign consecutive or concurrent sentences.  The court concluded Vaughn’s interpretation of “may” added vital language to the statute, but in State v. Ardry, the court ruled interpretations that add vital language are incorrect.  Additionally, the court found that only Kan. Stat. Ann. § 21-6606(d) applied to Vaughn, not Kan. Stat. Ann. § 21-6606(a) because Vaughn was not given multiple sentences on the same day.  Legislative history revealed the predecessor statute to Kan. Stat. Ann. § 21-6604(f) also gave courts the option to assign prison sentences, but not for defendants on felony bond.  Later, the legislature added individuals on felony bond to the statute, but only for consecutive sentences in accord with the prior statute to Kan. Stat. Ann. § 21-6606.  Thus, Vaughn’s sentence must be consecutive.

Key Authorities: State v. Ardry, 286 P.3d 207 (Kan. 2012) (“It is not, however, the function of the appellate courts to delete language from or add language to Kansas statutes, and only the legislature may decide whether the statutory sentencing scheme contains inequitable inconsistencies”).

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[1] Kan. Stat. Ann. § 21-6606(d) (Supp. 2019).

[2] Kan. Stat. Ann. § 21-6819(a) (Supp. 2019).

[3] Kan. Stat. Ann. § 21-6604(f)(4) (Supp. 2019) (emphasis added).