State v. Al-Bureni

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NOT DESIGNATED FOR PUBLICATION

No. 119,274

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

YUSUF J. M. AL-BURENI,
Appellee.


MEMORANDUM OPINION

Appeal from Montgomery District Court; F. WILLIAM CULLINS, judge. Opinion filed March 1,
2019. Sentence vacated and case remanded with directions.

Rachel L. Pickering, assistant solicitor general, and Derek Schmidt, attorney general, for
appellant.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellee.

Before BRUNS, P.J., SCHROEDER and GARDNER, JJ.

PER CURIAM: The State of Kansas appeals from the district court's decision to
order Yusuf J. M. Al-Bureni's sentence to run concurrent to his sentence in a prior case.
The State contends that the sentence imposed was illegal under the Kansas Sentencing
Guidelines Act (KSGA). Specifically, the State argues that K.S.A. 2017 Supp. 21-
6606(d) requires the new sentence to be served consecutive to any previous sentence. For
the reasons set forth in this opinion, we agree with the State's position on this issue. Thus,
we vacate Al-Bureni's sentence and remand this case to the district court for resentencing.

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FACTS

On February 7, 2017, Al-Bureni was convicted of unlawful possession of a
controlled substance with intent to distribute in Case No. 15 CR 422 I. While on felony
bond and awaiting sentencing, a deputy from the Montgomery County Sheriff's
Department stopped Al-Bureni while he was riding a bicycle. The Deputy searched Al-
Bureni and found two clear baggies containing a green, leafy substance; 20 white pills
with the marking M365; $741 in U.S. currency; a cell phone; a white folded piece of
paper with dollar amounts and the name "big Jad"; and a GPS monitoring ankle bracelet.

The State charged Al-Bureni with multiple offenses arising out of the incident on
the bicycle in Case No. 17 CR 151 I. Pursuant to a plea agreement, he entered a no
contest plea to one count of distribution of 3.5 grams or more of marijuana in that case.
The State dismissed the remaining counts, and the district court found him guilty of the
distribution charge.

According to the presentence investigation report (PSI), Al-Bureni faced a
presumptive prison term of 55 to 62 months in Case No. 17 CR 151 I. The PSI showed
that Al-Bureni was subject to "Special Rule 10" because he committed the new offense
while he was on felony bond in Case No. 15 CR 422 I. Under this special rule, the district
court needed to run the sentence in Case No. 17 CR 151 I consecutive to the sentence
imposed in Case No. 15 CR 422 I.

At sentencing, defense counsel orally moved for a durational departure. Before
sentencing in this case, the district court declined to make border box findings in Case
No. 15 CR 422 I. Instead, the district court imposed a prison sentence that was later
modified to 105 months. Because of this ruling, defense counsel asked the district court
to either order Al-Bureni's sentence to run concurrent to his existing sentence in Case No.
15 CR 422 I or to grant "a substantial durational departure in this case."
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In support of his oral motion for departure, defense counsel argued that an
additional prison sentence would prevent Al-Bureni from contributing to his family.
Defense counsel further argued that Al-Bureni had a substance abuse problem that would
be better addressed by treatment rather than incarceration. Al-Bureni personally told the
district court that he had been taking classes while in prison, and that he wanted to do his
time so he could get back to his family.

Defense counsel candidly acknowledged the applicable special sentencing rule and
stated:

"We understand that there is a 'crime committed while on felony bond' special
rule in this case. I believe the Court can make sufficient findings that despite that special
rule, [Al-Bureni] does not pose a threat to the community. The Court will notice that the
criminal history is comprised mostly of drug felony cases."

However, defense counsel did not argue that sentencing Al-Bureni to consecutive
sentences would result in a manifest injustice to support a deviation from the statute's
consecutive sentencing mandate. See K.S.A. 2017 Supp. 21-6819(a). Moreover, the
district court did not mention manifest injustice in sentencing Al-Bureni in this case.

Ultimately, the district court imposed a 59-month prison sentence with a term of
36 months of postrelease supervision. Despite the information on the PSI report showing
that the special sentencing rule applied, the district court ordered the sentence in this case
to run concurrent with Al-Bureni's sentence in Case No. 15 CR 422 I.

In ordering the concurrent sentence, the district court judge stated:

"Given your young age and the fact that I gave you a lengthy sentence in Case
No. 15 CR 422, the Court's inclined to run these sentences concurrently to one another
and not consecutively to one another. To me, it's easier to run them concurrently than
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departing, but there—in the Court's mind, there's reasons to depart. And the fact that he
already is serving a lengthy sentence and he is very—of a very young age."

The State then filed a timely notice of appeal.

ANALYSIS

On appeal, the State contends that the district court imposed an illegal sentence in
this case. In particular, the State argues that the district court erred when it ordered Al-
Bureni's new sentence to run concurrent to his earlier sentence. The State cites K.S.A.
2017 Supp. 21-6606(d), which mandates—absent a finding of manifest injustice—that
the district court must impose consecutive sentences when a defendant commits a new
crime while on bond supervision.

Whether a sentence is illegal under K.S.A. 2017 Supp. 22-3504 is a question of
law over which we have unlimited review. State v. Lee, 304 Kan. 416, 417, 372 P.3d 415
(2016). K.S.A. 2017 Supp. 22-3504(1) allows a court to correct an illegal sentence at any
time, and we may consider whether a sentence is illegal for the first time on appeal. State
v. Fisher, 304 Kan. 242, 263-64, 373 P.3d 781 (2016). An illegal sentence includes one
that does not conform to the applicable statutory provision in either the character or the
term of authorized punishment. State v. Hayes, 307 Kan. 537, 538, 411 P.3d 1225 (2018).

K.S.A. 2017 Supp. 21-6606(d) provides: "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, and amendments thereto, shall serve the
sentence consecutively to the term or terms under which the person was released." As is
often the case, there is an exception to the mandate provided in K.S.A. 2017 Supp. 21-
6606(d). In K.S.A. 2017 Supp. 21-6819(a), our Legislature provided an exception to this
statutory requirement "if such application would result in a manifest injustice." So a
district court may deviate from the statutorily mandated consecutive sentencing
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requirement if it makes a finding that imposing consecutive sentences would result in a
manifest injustice. See K.S.A. 2017 Supp. 21-6819(a); State v. Fevurly, No. 110,254,
2015 WL 967535, at *3 (Kan. App. 2015) (unpublished opinion).

Here, there is no dispute that Al-Bureni was convicted and sentenced for a new
crime committed while on release for a felony. The State therefore asserts that K.S.A.
2017 Supp. 21-6606(d) mandates consecutive sentences. Nevertheless, Al-Bureni claims
the State misinterprets the sentencing statutes.

We exercise unlimited review when interpreting the sentencing statutes. State v.
Warren, 307 Kan. 609, 612, 412 P.3d 993 (2018). The most fundamental rule of statutory
construction is that the intent of the Legislature governs if that intent can be ascertained.
State v. Jordan, 303 Kan. 1017, 1019, 370 P.3d 417 (2016). When construing statutes to
determine legislative intent, we consider the various provisions of an act in pari materia
with a view of reconciling and bringing the provisions into workable harmony if possible.
State v. Keel, 302 Kan. 560, Syl. ¶ 7, 357 P.3d 251 (2015).

Al-Bureni contends that the mandate provided in K.S.A. 2017 Supp. 21-6606(d)
conflicts with K.S.A. 2017 Supp. 21-6604(f)(4). He suggests that both statutes address
the situation of an offender who commits a crime while on felony bond. He argues that
K.S.A. 2017 Supp. 21-6604(f)(4) provides the district court with discretion when
deciding to impose concurrent or consecutive sentences in this situation.

K.S.A. 2017 Supp. 21-6604(f)(4) states:

"When a new felony is committed while the offender is on release for a felony
pursuant to the provisions of article 28 of chapter 22 of the Kansas Statutes Annotated,
and amendments thereto, or similar provisions of the laws of another jurisdiction, a new
sentence may be imposed consecutively pursuant to the provisions of K.S.A. 2017 Supp.
21-6606, and amendments thereto, and the court may sentence the offender to
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imprisonment for the new conviction, even when the new crime of conviction otherwise
presumes a nonprison sentence. In this event, imposition of a prison sentence for the new
crime does not constitute a departure." (Emphasis added.)

The State asserts that the word "may" in K.S.A. 2017 Supp. 21-6604(f)(4) refers to
the district court imposing imprisonment instead of a nonprison sentence, not whether the
court may impose consecutive or concurrent sentences. Regardless, even if the language
refers to whether the court decides to impose consecutive or concurrent sentences, we do
not find that the permissive word "may" necessarily conflicts with the mandate in K.S.A.
2017 Supp. 21-6606(d). The language in K.S.A. 2017 Supp. 21-6604(f)(4) is more broad
and includes those defendants who committed a crime while on release for a felony under
the laws of another jurisdiction while K.S.A. 2017 Supp. 21-6606(d) specifically refers
only to the Kansas statutes. Thus, we do not find that the language provided in K.S.A.
2017 Supp. 21-6606(d) and K.S.A. 2017 Supp. 21-6604(f)(4) conflicts.

K.S.A. 2017 Supp. 21-6606(a) through (e) specifically provides when the district
court has discretion to impose concurrent and/or consecutive sentences. Subsections (a)
and (b) of K.S.A. 2017 Supp. 21-6606 outline when the district court may impose either a
concurrent or a consecutive sentence. Subsection (a) provides, in relevant part:

"When separate sentences of imprisonment for different crimes are imposed on a
defendant on the same date, including sentences for crimes for which suspended
sentences, probation or assignment to a community correctional services program have
been revoked, such sentences shall run concurrently or consecutively as the court
directs."

Subsection (b) provides:

"Any person who is convicted and sentenced for a crime committed while on
probation, assignment to a community correctional services program, parole or
conditional release for a misdemeanor shall serve the sentence concurrently with or
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consecutively to the term or terms under which the person was on probation, assigned to
a community correctional services program or on parole or conditional release, as the
court directs."

In contrast, subsections (c), (d), and (e) direct the court to impose consecutive
sentences. Subsection (c) provides:

"Any person who is convicted and sentenced for a crime committed while on
probation, assigned to a community correctional services program, on parole, on
conditional release or on postrelease supervision for a felony shall serve the sentence
consecutively to the term or terms under which the person was on probation, assigned to
a community correctional services program or on parole or conditional release."

Subsection (d) provides:

"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,
and amendments thereto, shall serve the sentence consecutively to the term or terms
under which the person was released."

Finally, subsection (e)(1) provides:

"Any person who is convicted and sentenced for a crime committed while such
person is incarcerated and serving a sentence for a felony in any place of incarceration
shall serve the sentence consecutively to the term or terms under which the person was
incarcerated."

K.S.A. 2017 Supp. 21-6606(c), (d), and (e) describe circumstances under which
the district court must impose consecutive sentences, and subsection (d) mandates that
the court impose consecutive sentences when a defendant is convicted and sentenced for
a crime "while on release for a felony pursuant to article 28 of chapter 22 of the Kansas
Statutes Annotated." The Kansas Legislature plainly designated when the district court
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has discretion to impose concurrent sentences and when, as shown in subsection (c)
through (e), the district court does not have discretion and must impose consecutive
sentences.

Al-Bureni also suggests that because subsection (a) of K.S.A. 2017 Supp. 21-6606
refers to sentences of imprisonment for different crimes that are imposed on a defendant
on the same date, the entire statute applies only to sentences of multiple crimes imposed
on the same date. However, when the statute is read as a whole, it is evident that
subsections (a) through (e) apply to different situations, and the entire statute is not
restricted to multiple sentences for different crimes imposed on the same date. That
specific situation is referred to explicitly in subsection (a), which is to be read and
interpreted independently from the other subsections.

Finding no conflict between the statutes, we now turn to the question of whether
the sentence is illegal. A review of the record reveals that Al-Bureni committed a new
crime while on release for a felony. In such an instance, K.S.A. 2017 Supp. 21-6606(d)
requires that a new sentence be served consecutive to the sentence in case No. 15 CR 422
I. As noted, K.S.A. 2017 Supp. 21-6819(a) provides an exception to the mandate if a
manifest injustice would result if the district court imposed consecutive sentences. Here,
although the district court suggested that there might be reasons to impose a lesser
sentence, the district court failed to make a finding that imposing consecutive sentences
would result in a manifest injustice.

In Fevurly, this court considered whether the district court had violated the
mandated consecutive sentences as provided in K.S.A. 2017 Supp. 21-6606(d). It was
noted that the manifest injustice requirement "presents quite a high hurdle" and must be
considered on a case-by-case basis. 2015 WL 967535, at *3 (quoting Wilkinson v. State,
40 Kan. App. 2d 741, 742, 195 P.3d 278 [2008]). A sentence results in manifest injustice
only when the sentence "'is obviously unfair and shocks the conscience of the court.'"
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Wilkinson, 40 Kan. App. 2d at 742. Similar to the present case, the district court in
Fevurly made no findings to support a conclusion that imposing consecutive sentences
would result in a manifest injustice. This court remanded the case for resentencing. 2015
WL 967535, at *3.

Because Al-Bureni never made a manifest injustice argument to the district court,
and the district court failed to make a finding of manifest injustice at sentencing, we
conclude that Al-Bureni's sentence is illegal as it fails to follow the mandate provided by
our Legislature in K.S.A. 2017 Supp. 21-6606(d). Although Al-Bureni argues that K.S.A.
2017 Supp. 21-6819(a) does not require the district court to make explicit findings on the
record, it is the role of the district court—not an appellate court—to determine whether
the manifest injustice exception applies. If Al-Bureni desires to raise this issue at his
resentencing, he is free to do so. However, should the district court decide that the
exception should be applied, it "should clearly state so on the record and identify the
evidence upon which it relies to make such a determination." 2015 WL 967535, at *3.

Accordingly, we vacate Al-Bureni's sentence in Case No. 17 CR 151 I, and we
remand this case to the district court for resentencing in accordance with the mandates of
K.S.A. 2017 Supp. 21-6606(d) and K.S.A. 2017 Supp. 21-6819(a).

Sentence vacated and case remanded with directions.