State v. Starlin

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NOT DESIGNATED FOR PUBLICATION

No. 120,346


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BRAD A. STARLIN,
Appellant.


MEMORANDUM OPINION

Appeal from Ellsworth District Court; SCOTT E. MCPHERSON, judge. Opinion filed July 5, 2019.
Affirmed.

Submitted by the parties for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and
(h).

Before MALONE, P.J., GREEN and BRUNS, JJ.

PER CURIAM: Brad A. Starlin pled no contest to one count of possession of a drug
upon the grounds of a correctional facility. At sentencing, the district court granted
Starlin's motion for a durational departure and sentenced him to an 18-month sentence.
The district court noted that the sentence was "consecutive to his current charges." At the
end of the sentencing hearing, the county attorney read into the record what he
maintained was "the case numbers that this case runs consecutive to." In so doing, the
county attorney omitted Cowley County case No. 2010-CR-349. The district court,
however, included this case in its journal entry and indicated that the sentence in this case
was consecutive to all of the cases, including the one omitted at the sentencing hearing.

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Starlin later moved to correct an illegal sentence. He contended that the
pronouncement at sentencing controlled and, because the Cowley County case was not
included in the county attorney's recitation of cases, his current sentence must be
concurrent with that sentence. The district court denied that motion, ruling that the
Kansas statutes mandated that a crime committed while incarcerated and serving a
sentence for a felony must be consecutive to all pending cases.

On appeal, Starlin contends that the district court erred when it denied his motion
to correct an illegal sentence because the record did not affirmatively show that the
sentence in this case was consecutive to the Cowley County case. We granted Starlin's
motion for summary disposition under Supreme Court Rule 7.041A (2019 Kan. S. Ct. R.
47). The State responded to this motion for summary disposition, and it joined in the
request for summary disposition.

We are guided in this inquiry by K.S.A. 2018 Supp. 21-6606. Interpretation of a
statute is a question of law over which appellate courts have unlimited review. State v.
Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015). K.S.A. 2018 Supp. 21-6606(a)
states in part, the following: "Whenever the record is silent as to the manner in which
two or more sentences imposed at the same time shall be served, they shall be served
concurrently, except as otherwise provided in subsections (c), (d), and (e)." K.S.A. 2018
Supp. 21-6606(e)(1) states as follows: "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." Because Starlin was incarcerated, which he
does not dispute, and serving a sentence for a felony, the sentencing judge was bound by
K.S.A. 2018 Supp. 21-6606(e)(1) to rule that his sentence for possession of a drug upon
the grounds of a correctional facility would be consecutive to his conviction in the
Cowley County case. As a result, Starlin's argument fails.

Affirmed.