State v. Taylor

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 108,130

STATE OF KANSAS,
Appellee,

v.

SHERWIN TAYLOR,
Appellant.


SYLLABUS BY THE COURT

1.
A speedy trial claim is not properly raised in a motion to correct an illegal
sentence under K.S.A. 22-3504.

2.
Under K.S.A. 1987 Supp. 21-4608, in order for a trial court to impose a
consecutive sentence, there must be a prior sentence in existence at the time of the
subsequent sentencing. A trial court has no authority under that statute to direct a
sentence to run consecutive to a nonexistent sentence that might thereafter be imposed in
a pending case.

3.
K.S.A. 1987 Supp. 21-4608(4) requires sentences for crimes committed while on
release for a felony pursuant to article 28 of chapter 22 of the Kansas Statutes Annotated
to be served consecutive to the term or terms under which the person was released.
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4.
A district court should examine a motion to correct an illegal sentence to
determine if it raises substantial issues of law or fact. If it does not, the motion should be
summarily denied.

Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed March 14,
2014. Affirmed in part, reversed in part, and remanded with directions.

Sean M.A. Hatfield and Carl F.A. Maughan, of Maughan & Maughan LC, of Wichita, were on
the brief for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: Sherwin Taylor appeals the summary denial of his pro se motion to
correct an illegal sentence filed 23 years after sentencing. He claims a speedy trial
violation deprived the sentencing court of jurisdiction to impose sentence, and that the
sentencing court improperly ordered his sentences to run consecutive to sentences not yet
imposed in another case. He also claims the district court erred by summarily denying the
motion, arguing he was entitled to appointed counsel under the statute governing motions
to correct an illegal sentence, K.S.A. 22-3504.

Taylor's speedy trial claim cannot be raised in a motion to correct an illegal
sentence because it challenges his convictions, not the sentences imposed. See State v.
Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013).

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But the consecutive sentencing claim is more complicated. A sentence cannot be
ordered to run consecutive to a sentence not yet imposed. State v. Reed, 237 Kan. 685,
690, 703 P.2d 756 (1985). In that respect, the sentencing court erred by running the
sentences in this case consecutive to sentences not yet imposed in another case pending
against Taylor, 87 CR 412. K.S.A. 1987 Supp. 21-4608(4) required consecutive
sentences in this case if Taylor committed the crimes while on release in 87 CR 412. We
cannot determine from the record whether Taylor was on release at the time he
committed these offenses.

We remand for the district court to determine whether Taylor was on release in 87
CR 412 when the crimes in this case were committed and whether K.S.A. 1987 Supp. 21-
4608(4) applied. And based on that determination, the district court may have to conduct
further proceedings as may be warranted, such as resentencing. Because of our
disposition, it is unnecessary to address his appointment of counsel claim, which is raised
for the first time on appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Taylor was convicted of aggravated robbery and first-degree murder in this case,
designated in the district court as case No. 87 CR 1120, for conduct occurring on or
around July 15, 1987. On March 31, 1988, he was sentenced to "not less than fifteen (15)
years to Life" for aggravated robbery and "Life" for murder. The sentencing journal entry
states that the sentences were ordered to run consecutive to each other and "to the
sentence imposed against the Defendant in Case No. 87 CR 412." (Emphasis added.)

Taylor's direct appeal was unsuccessful. State v. Taylor, No. 62,629, 1989 WL
151266 (Kan. 1989) (unpublished opinion). He has filed numerous postconviction
motions without success. See Taylor v. McKune, No. 99-3182, 2002 WL 398740, at *1
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(D. Kan. 2002) (unpublished opinion) (noting it was Taylor's fourth habeas corpus
motion).

Taylor filed this pro se motion to correct an illegal sentence in 2011, over 23 years
after he was sentenced. He claimed a speedy trial violation and that the sentencing court
lacked authority to order his sentences to run consecutive to the sentences imposed in 87
CR 412. Taylor attached the journal entry of judgment from 87 CR 412 to his motion. It
establishes he pleaded guilty to two felonies on August 27, 1987, i.e., after the aggravated
robbery and murder were committed in this case. It also establishes Taylor was sentenced
in 87 CR 412 on April 5, 1988, which was after the sentences were imposed in this case.

The State responded that Taylor's speedy trial claim is a collateral attack on his
convictions that cannot be raised in a motion to correct an illegal sentence. The State also
argued the sentencing court was required to order consecutive sentences under K.S.A.
1987 Supp. 21-4608(4) because the crimes in this case were committed while Taylor was
on release for two felonies in 87 CR 412.

The district court summarily denied Taylor's motion in a brief journal entry
stating: "[Court] adopts State's reply as its findings of fact and conclusions of law."
Taylor appealed.

This court's jurisdiction arises under K.S.A. 2011 Supp. 22-3601(b)(3) (life
sentence imposed); see State v. Pennington, 288 Kan. 599, 599, 205 P.3d 741 (2009)
(jurisdiction over appeal of motion to correct illegal sentence lies with court that had
jurisdiction to hear original appeal).

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SUMMARY DENIAL OF THE MOTION

Taylor argues the district court erred by summarily denying his motion to correct
an illegal sentence.

Standard of Review

This court reviews the summary denial of a motion to correct an illegal sentence
under K.S.A. 22-3504 de novo because it has the same access as the district court to the
motions, records, and files. Trotter, 296 Kan. at 901. This court, like the district court,
must determine whether those documents conclusively show the defendant is not entitled
to relief. 296 Kan. at 901-02. K.S.A. 22-3504 applies only if the sentence is illegal.

Whether a sentence is illegal is a question of law over which this court has
unlimited review. 296 Kan. at 902. An "illegal sentence" is: (1) a sentence imposed by a
court without jurisdiction; (2) a sentence that does not conform to the applicable statutory
provision, either in character or the term of authorized punishment; or (3) a sentence that
is ambiguous with respect to the time and manner in which it is to be served. 296 Kan. at
902.

Speedy Trial Claim

Taylor contends his speedy trial claim places his consecutive sentences within the
first category—that the court lacked jurisdiction to impose them—because he was not
tried within 180 days after arraignment. He acknowledges his right to a speedy trial may
be waived and that his counsel requested several continuances, but he argues the record
does not demonstrate he personally waived his right to a speedy trial.

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The State correctly argues Taylor's speedy trial violation claim cannot be raised in
a motion to correct an illegal sentence because it is a challenge to his convictions, not his
sentences. This is evident because the proper remedy for a speedy trial violation is to
reverse the convictions—not impose a different sentence. See State v. Adams, 283 Kan.
365, 371, 153 P.3d 512 (2007) (reversing convictions based on speedy trial violation).

It is well established that K.S.A. 22-3504 is a vehicle to correct an illegal sentence
and not a mechanism to reverse a conviction. Trotter, 296 Kan. at 902; State v. Williams,
283 Kan. 492, 495-96, 153 P.3d 520 (2007). This court has repeatedly applied this
principle to reject illegal sentence appeals premised on defective complaints because a
defective complaint goes to the lawfulness of the conviction, not the sentence. See
Trotter, 296 Kan. at 904; State v. Sims, 294 Kan. 821, 825, 280 P.3d 780 (2012).
Moreover, the Court of Appeals has addressed the precise speedy trial issue advanced by
Taylor and held that a motion to correct an illegal sentence may not allege such violation.
See Trass v. State, No. 104,039, 2011 WL 1814917, at *2 (Kan. App. 2011) (unpublished
opinion). The district court did not err by summarily denying Taylor's speedy trial claim.

Consecutive Sentencing

Taylor's second argument is that his sentences are illegal because they were
ordered to run consecutive to the sentences in 87 CR 412, which had not been imposed
yet. On appeal, the State's first argument is that Taylor failed to meet his burden to
designate the record because the record does not reflect whether Taylor's account of the
timing is accurate.

The State is correct that Taylor bears the burden of proof. See State v. Neal, 292
Kan. 625, 633, 258 P.3d 365 (2011). But the State overlooks that Taylor attached the
journal entries from this case and case No. 87 CR 412 to his motion. These entries
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establish that Taylor was sentenced in this case on March 31, 1988, and sentenced in 87
CR 412 a few days later on April 5. In fact, the State conceded to the district court that
"[t]he sentencing in 87 CR 1120 occurred five days before the sentence was imposed in
87 CR 412."

Turning to the merits, Taylor cites Reed, 237 Kan. at 690, as establishing that a
sentence cannot be ordered to run consecutive to a sentence not yet entered. In Reed, the
defendant was charged in one case. While out on bond, Reed committed more crimes and
was charged in a subsequent case. The trial court sentenced Reed in the first case, but it
ordered his sentences to run consecutive to the sentences not yet imposed in the
subsequent case. Reed appealed. The court held:

"[I]n order for a trial court to impose a consecutive sentence, there must be a prior
sentence in existence at the time of the subsequent sentencing. A trial court has no
authority to direct a sentence to run consecutively to a nonexisting sentence which might
thereafter be imposed in a pending case." (Emphasis added.) 237 Kan. at 690.

Consistent with Reed, we hold that the sentencing court erred by running Taylor's
sentences in this case consecutive to his sentences in case No. 87 CR 412 because those
sentences did not yet exist. But the case does not end here. We must continue the analysis
because the State also argues Taylor's sentences are not illegal because the district court
was statutorily required to enter consecutive sentences under K.S.A. 1987 Supp. 21-
4608(4), which states:

"Any person who is convicted and sentenced for a crime committed while on release for a
felony pursuant to article 28 of chapter 22 of the Kansas Statutes Annotated shall serve
the sentence consecutively to the term or terms under which the person was released."

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Application of K.S.A. 1987 Supp. 21-4608(4) turns on whether Taylor was on
release for a felony in case No. 87 CR 412 when he committed aggravated robbery and
first-degree murder in this case. The record establishes Taylor committed the crimes in 87
CR 1120 on July 15, 1987, and pleaded guilty to the two felonies in case No. 87 CR 412
about a month and a half later, on August 27, 1987.

Given the limited time between these events, it is highly probable Taylor was "on
release for a felony" in 87 CR 412 at the time he committed the crimes in this case, but
the record is not conclusive about this. As a result, summary denial was improper.

We remand Taylor's case for the district court to determine whether Taylor was on
release in 87 CR 412 when he committed the crimes in this case and whether K.S.A.
1987 Supp. 21-4608(4) applied. Further proceedings may be required after that
determination.

Affirmed in part, reversed in part, and remanded with directions.