State v. Harris

1

NOT DESIGNATED FOR PUBLICATION

No. 116,523

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JARROD HARRIS,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; THOMAS M. SUTHERLAND, judge. Opinion filed May 12,
2017. Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2016 Supp. 21-6820(g) and (h).

Before MALONE, P.J., LEBEN and POWELL, JJ.

Per Curiam: Jarrod S. Harris appeals the district court's denial of his two separate
motions to correct illegal sentence. We granted Harris' motion for summary disposition in
lieu of briefs pursuant to Supreme Court Rule 7.041A (2017 Kan. S. Ct. R. 48). The State
has filed a response and requested that the district court's judgment be affirmed.

On October 9, 2015, Harris pled no contest to two counts of aggravated burglary
in Johnson County case number 14CR992. On November 13, 2015, the district court
imposed a downward durational departure sentence of 108 months' imprisonment,
pursuant to the plea agreement. The district court stated that the sentence would "run
consecutive to any other case where the special rule applies." The journal entry of
2

judgment only specified that the sentence in case number 14CR992 would run
consecutive to Harris' sentence in Johnson County case number 11CR144.

On April 27, 2016, Harris filed a pro se motion to correct illegal sentence in
Johnson County case number 14CR992 stating that at the time he was sentenced in that
case, he was serving sentences for other cases in Johnson County and Franklin County in
addition to Johnson County case number 11CR144. Harris argued that because the
journal entry in case number 14CR992 only specified that his sentence in that case shall
run consecutive to the sentence in Johnson County case number 11CR144, the sentence
must run concurrent with his sentences in all other cases.

On July 8, 2016, Harris filed a second pro se motion to correct illegal sentence in
Johnson County case number 14CR992 arguing that his criminal history score was
incorrectly calculated in that case. Harris argued that because his crime in Johnson
County case number 13CR2029 occurred after his crimes were committed in case number
14CR992, the conviction in case number 13CR2029 should not have been included as
part of his criminal history in determining his sentence in case number 14CR992.

Following a hearing on July 15, 2016, the district court denied both motions.
Regarding Harris' first motion, the court found it had not been silent as to whether the
sentences were to run consecutive or concurrent, based on its order regarding application
of the special rules. The district court specifically found that Harris committed his crimes
in Johnson County case number 14CR992 while he was released on felony bond in
Franklin County case numbers 12CR326 and 13CR85. Thus, the district court concluded
that Harris' sentence in Johnson County case number 14CR992 shall run consecutive to
his sentences in the Franklin County cases. Regarding the second motion, the district
court concluded that Harris' criminal history score was properly calculated in Johnson
County case number 14CR992 based on the dates of his prior convictions, rather than the
dates the prior crimes were committed. Harris timely appealed.
3

On appeal, Harris claims the district court erred in denying his motions to correct
illegal sentence. Specifically, Harris argues that his sentence in Johnson County case
number 14CR992 "should run concurrent to his sentences in [Franklin County] case
number 12-CR-326 and 13-CR-85." He also argues that "his criminal history score was
incorrectly calculated" in Johnson County case number 14CR992. The State responds
that the district court correctly denied both motions to correct illegal sentence.

Interpretation of a sentencing statute is a question of law, and the standard of
review is unlimited. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).
Moreover, whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a
question of law over which the appellate court has unlimited review. State v. Lee, 304
Kan. 416, 417, 372 P.3d 415 (2016).

Harris renews his argument that his sentence in Johnson County case number
14CR992 should run concurrent with his sentences in Franklin County case numbers
12CR326 and 13CR85. We note that the court files of the Franklin County cases are not
included in the record on appeal. However, at the hearing on July 15, 2016, the district
court specifically found that Harris committed his crimes in Johnson County case number
14CR992 while he was released on felony bond in Franklin County case numbers
12CR326 and 13CR85. Harris does not challenge this finding on appeal.

Harris acknowledges that pursuant to K.S.A. 2016 Supp. 21-6604(f)(4), if a new
crime is committed while on felony bond, the court may impose the new sentence
consecutive to prior sentences. Harris also acknowledges that pursuant to K.S.A. 2016
Supp. 21-6606(d), a person sentenced for a crime committed while on felony bond "shall
serve the sentence consecutively to the term or terms under which the person was
released." Based on these statutes, the district court did not err in ordering that Harris'
sentence in Johnson County case number 14CR992 shall run consecutive to his sentences
in Franklin County case numbers 12CR326 and 13CR85.
4

Harris also renews his argument that his criminal history score was incorrectly
calculated in Johnson County case number 14CR992. He maintains that the date the
crimes were committed in this case "preceded the date of the commission of the crime in
[Johnson County] case number 13-CR-[2]029" and that fact should control his criminal
history score because, according to Harris, a defendant is sentenced by the law in place
on the date a crime is committed. However, Harris acknowledges that K.S.A. 2016 Supp.
21-6810(a) requires that the calculation of a defendant's criminal history score is to be
based on the defendant's prior convictions and the statute defines a "prior conviction" as
"any conviction . . . which occurred prior to sentencing in the current case regardless of
whether the offense that led to the prior conviction occurred before or after the current
offense or the conviction in the current case." Although Harris committed his crimes in
Johnson County case number 14CR992 prior to the date of the commission of his crime
in Johnson County case number 13CR2029, Harris was convicted in 13CR2029 before he
was sentenced in 14CR992. Pursuant to K.S.A. 2016 Supp. 21-6810(a), the district court
did not err by including the conviction in case number 13CR2029 as part of Harris'
criminal history score in determining his sentence in case number 14CR992.

Affirmed.