State v. Clark ( 2021 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 121,789
STATE OF KANSAS,
Appellant,
v.
SIDNEY W. CLARK,
Appellee.
SYLLABUS BY THE COURT
1.
The right to appeal derives from statute. Therefore, as a general rule, appellate
courts may exercise jurisdiction only when authorized to do so by statute.
2.
Under the doctrine of stare decisis, points of law established by a court are
generally followed by the same court and courts of lower rank in later cases in which the
same legal issue is raised.
3.
This court endeavors to adhere to precedent unless clearly convinced a rule of law
established in its earlier cases was originally erroneous or is no longer sound because of
changing conditions and that more good than harm will come by departing from
precedent.
1
4.
Consistent with State v. Scherzer, 254 Kan. 926, 929-30, 869 P.2d 729 (1994),
appellate courts have jurisdiction under K.S.A. 60-2101 and K.S.A. 2020 Supp. 22-3504
to hear the State's appeal of an illegal sentence.
5.
The legality of a sentence under K.S.A. 2020 Supp. 22-3504 is controlled by the
law in effect at the time the sentence was pronounced.
6.
In Kansas, the mandate rule is a statutory imperative that requires lower courts to
follow the mandates issued by appellate courts.
7.
An intervening change in the law can create an exception to the law of the case
doctrine—a rule created by common law. However, this exception does not apply to the
statutorily derived mandate rule. So, while different panels of the Court of Appeals
hearing successive appeals in the same case may, in exceptional circumstances, depart
from the law of the case, under Kansas law no exceptional circumstances permit a lower
court to circumvent the mandate of a higher court. This holds true even when a change in
the law has occurred.
8.
The doctrine of constitutional avoidance is a rule of statutory construction. It
imposes a duty on the court to construe a statute as constitutionally valid when it is faced
with more than one reasonable interpretation. In other words, if a court can genuinely,
reasonably, plausibly, or fairly interpret and construe statutory language consistent with
legislative intent in a manner that also preserves it from impermissibly encroaching on
constitutional limits, the court must do so.
2
Review of the judgment of the Court of Appeals in an unpublished opinion filed April 17, 2020.
Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed May 14, 2021. Judgment
of the Court of Appeals vacating the sentence and remanding the case to the district court is affirmed.
Judgment of the district court is reversed and the case is remanded with directions.
Thomas R. Stanton, district attorney, argued the cause, and Keith E. Schroeder, former district
attorney, and Derek Schmidt, attorney general, were on the brief for appellant.
Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellee.
The opinion of the court was delivered by
WALL, J.: Sidney W. Clark was originally sentenced in 2005. Years later, he filed
a motion to correct an illegal sentence, arguing his prior out-of-state conviction was
incorrectly classified as a person offense for criminal history purposes. The district court
denied the motion. On Clark's appeal from this ruling, the Court of Appeals reversed
based on State v. Wetrich, 307 Kan. 552, Syl. ¶ 3, 412 P.3d 984 (2018), and remanded for
resentencing with Clark's prior conviction classified as a nonperson offense. State v.
Clark, No. 119,076, 2019 WL 1746772 (Kan. App. 2019) (unpublished opinion)
(Clark I).
Before the district court resentenced Clark on remand, a series of legal
developments called into question the holding in Clark I. Nevertheless, the district court
concluded it was bound by the mandate of Clark I and resentenced Clark accordingly.
This time, the State appealed, arguing Clark's 2019 sentence was illegal and Clark should
have been resentenced based on the law in effect in 2005. The Court of Appeals agreed.
State v. Clark, No. 121,789, 2020 WL 1903820, at *3 (Kan. App. 2020) (unpublished
3
opinion) (Clark II). We granted Clark's petition for review, which challenged the
jurisdictional and substantive basis of the ruling in Clark II.
This appeal requires us to decide whether Kansas appellate courts have
jurisdiction to hear a State's appeal challenging the legality of a sentence. If so, we must
also decide whether Clark's sentence is controlled by the law in effect at the time of his
original sentence in 2005 or the law in effect at the time of his resentencing in 2019.
Adhering to the doctrine of stare decisis, we follow State v. Scherzer, 254 Kan.
926, 929-30, 869 P.2d 729 (1994), which held K.S.A. 60-2101 and K.S.A. 22-3504 vest
appellate courts with jurisdiction to hear a State's appeal challenging the legality of a
sentence. Further, we hold the legality of Clark's sentence is determined by the law in
effect at the time of his sentence in 2005, and neither the mandate rule nor the doctrine of
constitutional avoidance alter this conclusion. Accordingly, we affirm the judgment of
the Court of Appeals, vacate Clark's sentence, and remand to the district court for
resentencing in accordance with this opinion.
FACTS AND PROCEDURAL BACKGROUND
In February 2005, Clark pled guilty to one count of aggravated criminal sodomy, a
severity level 2 person felony, based on conduct that occurred in January 2004. At Clark's
sentencing in June 2005, the district court determined his criminal history score was a B.
This score was based in part on a 2000 Oklahoma conviction for placing bodily fluids on
a government employee. The district court classified this conviction as a person felony
and sentenced Clark to the aggravated term of 460 months in prison.
In 2017, Clark filed a pro se motion to correct an illegal sentence. He argued his
Oklahoma conviction for placing bodily fluids on a government employee was not
comparable to any Kansas offense. Clark identified the closest Kansas offense to be
4
battery against a law enforcement officer, which criminalized intentional contact with
another person when done in a rude, insulting, or angry manner. But Clark alleged his
Oklahoma conviction stemmed from an incident in which he involuntarily spit on
arresting officers after they used pepper spray on him and such accidental conduct would
not have qualified as rude, insulting, or angry behavior under the Kansas statute. Thus, he
claimed his Oklahoma conviction should have been classified as a nonperson felony
because no Kansas offense was comparable to the Oklahoma offense of placing bodily
fluids on a government employee.
The district court denied Clark's motion. The court explained that for the purposes
of determining an offender's criminal history score, the out-of-state offense and the
Kansas offense being compared need not be "identical with identical elements." Instead,
the offenses need only be comparable. The district court concluded the Oklahoma offense
of placing bodily fluids on a government employee was comparable to the Kansas
offense of battery against a law enforcement officer. As a result, the district court ruled
Clark's Oklahoma conviction was properly classified as a person felony.
The Court of Appeals reversed in Clark I. Applying Wetrich, the panel held the
Oklahoma offense of placing bodily fluids on a government employee is not comparable
to the Kansas offense of battery against a law enforcement officer because the elements
of the Oklahoma offense are not identical to or narrower than the Kansas offense. Clark I,
2019 WL 1746772, at *2-5. Accordingly, the panel vacated Clark's sentence and
remanded the case for resentencing with directions to recalculate Clark's criminal history
score with his Oklahoma conviction classified as a nonperson felony. 2019 WL 1746772,
at *6.
The State did not file a petition for review, and the Clark I mandate issued. On
remand, a new presentence investigation (PSI) report classified Clark's Oklahoma
conviction as a nonperson felony, lowering his criminal history score from B to C.
5
Resentencing was scheduled for July 2019. At that hearing, the district court
acknowledged that recent legal developments had cast doubt on whether Clark should be
resentenced in accordance with Wetrich. The district court continued the hearing so the
parties could address the recent caselaw developments. Both parties filed written
memoranda addressing the appropriate law for resentencing.
At a hearing on August 16, 2019, the district court found Clark had a criminal
history score of C and sentenced him to the aggravated term of 216 months. The State
objected, arguing that intervening caselaw since Clark I compelled the district court to
resentence Clark in accordance with the law in effect in 2005; otherwise, Clark's sentence
would be illegal. However, the district court ruled that it lacked authority to depart from
the appellate court's mandate to resentence Clark with a criminal history score of C.
The State appealed. And in Clark II, the panel held the district court erred because
Clark's 2005 sentence was legal when pronounced and subsequent changes in the law
could not render it illegal and subject to correction under K.S.A. 2020 Supp. 22-3504.
Thus, the panel concluded that Clark's Oklahoma conviction for placing bodily fluids on
a government employee should be classified as a person offense. Clark II, 2020 WL
1903820, at *3. The panel also rejected Clark's argument that the district court was bound
by the mandate in Clark I, reasoning that an intervening change in law created an
exception to the mandate rule. Clark II, 2020 WL 1903820, at *4. The panel vacated
Clark's 2019 sentence and remanded the case for resentencing. 2020 WL 1903820, at *5.
Clark sought review from this court, which we granted.
6
ANALYSIS
Kansas Appellate Courts Have Jurisdiction Over a State's Appeal Challenging the
Legality of a Sentence
Clark argues the State's appeal should be dismissed for lack of jurisdiction. He
contends that a party's right to appeal derives solely from statute, and there is no statutory
basis for the State to appeal from a district court's ruling on a motion to correct an illegal
sentence.
Standard of Review and Relevant Legal Framework
"Whether appellate jurisdiction exists is a question of law over which this court
has unlimited review. To the extent the court's inquiry requires statutory interpretation,
this court also exercises unlimited review. [Citations omitted.]" State v. Garcia-Garcia,
309 Kan. 801, 806, 441 P.3d 52 (2019). While Clark raises this issue for the first time in
his petition for review, "[a] jurisdictional question may be raised at any time and may
also be raised sua sponte by the appellate court." 309 Kan. at 806.
In Kansas, "[a]ppellate jurisdiction is defined by statute; the right to appeal is
neither a vested nor a constitutional right." Kansas Medical Mut. Ins. Co. v. Svaty, 291
Kan. 597, 609, 244 P.3d 642 (2010). The limits of appellate jurisdiction are imposed by
the Legislature. State v. Berreth, 294 Kan. 98, 110, 273 P.3d 752 (2012). Accordingly,
"'[an] appellate court has jurisdiction to entertain a State's appeal only if it is taken within
time limitations and in the manner prescribed by the applicable statutes.'" State v. Sales,
290 Kan. 130, 134, 224 P.3d 546 (2010). Therefore, as a general rule, appellate courts
may exercise jurisdiction only when authorized to do so by statute.
7
Any analysis of an appellate court's jurisdiction begins with K.S.A. 60-2101,
which vests appellate courts with jurisdiction to review the judgments of lowers courts.
See State v. LaPointe, 305 Kan. 938, 942, 390 P.3d 7 (2017); Flores Rentals v. Flores,
283 Kan. 476, 481, 153 P.3d 523 (2007). The statute provides that "[t]he supreme court
shall have jurisdiction to correct, modify, vacate or reverse any act, order or judgment of
a district court or court of appeals in order to assure that any such act, order or judgment
is just, legal and free of abuse." K.S.A. 60-2101(b). It also provides that "[i]n any case
properly before it, the court of appeals shall have jurisdiction to" do the same. K.S.A. 60-
2101(a).
K.S.A. 60-2101 also subjects certain criminal appeals to portions of the Code of
Criminal Procedure. Specifically, "[a]ppeals from the district court to the court of appeals
in criminal cases" and "[d]irect appeals from the district court to the supreme court in
criminal cases shall be as prescribed by K.S.A. 22-3601 and 22-3602, and amendments
thereto." K.S.A. 60-2101(a) and (b). However, "any decision of the court of appeals shall
be subject to review by the supreme court as provided in subsection (b) of K.S.A. 20-
3018." K.S.A. 60-2101(b).
K.S.A. 2020 Supp. 22-3601 defines those criminal cases in which an appeal shall
be taken directly to the Supreme Court and designates the Court of Appeals as the proper
forum for all other appeals permitted to be taken from a district court's final judgment in
a criminal case. And, more relevant here, K.S.A. 2020 Supp. 22-3602 defines the appeal
rights of criminal defendants and the State. Under K.S.A. 2020 Supp. 22-3602(a), a
criminal defendant may appeal "any judgment against the defendant in the district court,"
thus creating a "'a nearly unlimited right of review.'" Berreth, 294 Kan. at 110 (quoting
State v. Boyd, 268 Kan. 600, 605, 999 P.2d 265 [2000]).
In contrast, K.S.A. 2020 Supp. 22-3602(b) contemplates four circumstances in
which the State may appeal as matter of right in a criminal case:
8
"(b) Appeals to the court of appeals may be taken by the prosecution from cases
before a district judge, or a district magistrate judge who is regularly admitted to practice
law in Kansas, as a matter of right in the following cases, and no others:
(1) From an order dismissing a complaint, information or indictment;
(2) from an order arresting judgment;
(3) upon a question reserved by the prosecution; or
(4) upon an order granting a new trial in any case involving a class A or
B felony or for crimes committed on or after July 1, 1993, in any case involving
an off-grid crime."
While subsection (b) specifically lists only four circumstances in which the State
has the right to appeal, K.S.A. 2020 Supp. 22-3602(f) acknowledges that "an appeal by
the prosecution or the defendant relating to sentences imposed pursuant to . . . the revised
Kansas sentencing guidelines act . . . shall be as provided in . . . K.S.A. 21-6820." In turn,
K.S.A. 2020 Supp. 21-6820(a) provides that a "departure sentence is subject to appeal by
the defendant or the state." Other subsections of this statute authorize the appellate court,
in any appeal from a judgment of conviction, to review claims of sentencing error related
to the inclusion or exclusion of a prior conviction, the ranking of the crime severity level,
or the classification of a prior conviction. K.S.A. 2020 Supp. 21-6820(e)(2) and (3).
Finally, K.S.A. 2020 Supp. 22-3504(a) provides: "The court may correct an
illegal sentence at any time while the defendant is serving such sentence." As discussed
in greater detail below, this provision has been construed as a jurisdictional statute that
authorizes the State to appeal an illegal sentence and the appellate court to review such a
challenge.
9
State's Jurisdictional Bases for Appeal
In its docketing statement, the State relies on three specific statutes as the
jurisdictional bases for its appeal, including: (1) K.S.A. 22-3602(b)(3), addressing
appeals from a question reserved; (2) K.S.A. 21-6820(a), addressing appeals from a
departure sentence; and (3) "K.S.A. 33-3504(a) [sic]" (presumably intended to be K.S.A.
2020 Supp. 22-3504), the illegal sentence statute.
K.S.A. 2020 Supp. 22-3602(b)(3) authorizes the State to take an appeal from a
case before a district judge "upon a question reserved by the prosecution." At oral
argument, the State abandoned this jurisdictional basis for its appeal because any ruling
on a question reserved would not apply to Clark's sentence. See Berreth, 294 Kan. at 123
("[A]n appellate court's answer to a State's question reserved has no effect on the criminal
defendant in the underlying case.").
K.S.A. 2020 Supp. 21-6820(a) provides that a "departure sentence is subject to
appeal by the defendant or the state." But this provision also fails to provide a valid
jurisdictional basis for the State's appeal because Clark did not receive a departure
sentence. See K.S.A. 2020 Supp. 21-6803(f) ("'departure' means a sentence which is
inconsistent with the presumptive sentence for an offender"). The district court found
Clark had a criminal history score of C and sentenced him within the presumptive range
based on that criminal history score. If, as the State argues, the district court incorrectly
determined Clark's criminal history score, this would not convert the sentence into a
departure sentence. Rather, it would render the sentence illegal.
That brings us to the State's third and final proposed statutory basis for
jurisdiction, K.S.A. 2020 Supp. 22-3504, the illegal sentence statute. Our precedent
establishes that K.S.A. 2020 Supp. 22-3504, together with K.S.A. 60-2101, vests
10
appellate courts with jurisdiction to hear a State's appeal challenging the legality of a
sentence. Scherzer, 254 Kan. at 929-30.
In Scherzer, the district court sentenced the defendant to 90 days' imprisonment
but allowed the sentence to be served by house arrest. On appeal, our court issued a show
cause order requesting the State to establish the jurisdictional basis for the appeal. The
State claimed the district court's sentence failed to comply with statutory requirements,
rendering it illegal. Scherzer held appellate jurisdiction was proper, reasoning:
"The State characterizes its appeal as whether the sentence imposed by the
district court is illegal. This court has previously accepted an appeal by the State alleging
an illegal sentence, albeit without explaining the jurisdictional authority for our review of
the sentence imposed. See State v. Keeley, 236 Kan. 555, 694 P.2d 422 (1985). We note
this court has general statutory jurisdiction to correct, modify, vacate, or reverse any act,
order, or judgment of a district court in order to assure that any such act, order, or
judgment is just, legal, and free of abuse. K.S.A.1993 Supp. 60-2101(b). The court also
has specific statutory jurisdiction to correct an illegal sentence at any time. K.S.A. 22-
3504. We have jurisdiction to consider the State's appeal." 254 Kan. at 929-30.
Ordinarily, Scherzer's holding alone would be sufficient to dispose of Clark's
challenge and establish our jurisdiction over the State's appeal. However, Clark directs us
to a recent Court of Appeals decision, State v. McCroy, 57 Kan. App. 2d 643, 649, 458
P.3d 988 (2020), in which the panel held that "K.S.A. 22-3504 does not vest an appellate
court with jurisdiction to consider a State's appeal solely on the claim that a sentence is
illegal. Instead, for an appellate court to have jurisdiction, the case must originate from
one of the limited procedural postures articulated in K.S.A. 22-3602."
In reaching this conclusion, the McCroy panel recognized that K.S.A. 2018 Supp.
22-3504 authorizes courts to correct an illegal sentence "at any time." 57 Kan. App. 2d at
648. But the panel construed this language as an exception to the preservation rule,
11
thereby enabling appellate courts to address a sentence's legality for the first time on
appeal. The panel explained there is a distinction "between permitting a party to assert a
claim for the first time on appeal and this court's jurisdiction to hear the appeal in the first
place." 57 Kan. App. 2d at 648. The McCroy panel also acknowledged our contrary
conclusion in Scherzer. However, the panel believed more recent Kansas Supreme Court
decisions reflected a departure from Scherzer's "inherent-jurisdictional-authority
approach" in favor of a more rigorous statutory analysis. McCroy, 57 Kan. App. 2d at
649-50. Thus, the panel concluded it was no longer bound by Scherzer's holding.
While our recent decisions cited by the panel undertake a more extensive statutory
analysis than Scherzer did, none of those decisions directly bear on the jurisdictional
issue raised here. See, e.g., LaPointe, 305 Kan. at 955 (dismissing State's appeal from
order granting DNA testing because it met none of the criteria in K.S.A. 2015 Supp. 22-
3602[b]); Sales, 290 Kan. at 141 (dismissing the State's interlocutory appeal for failure to
make the necessary showings under K.S.A. 22-3603). Moreover, Scherzer remains good
law in that it has neither been overturned nor even questioned in our subsequent
decisions. Even so, McCroy requires us to consider whether Scherzer should continue to
control the outcome of Clark's jurisdictional challenge under the doctrine of stare decisis.
Adherence to Stare Decisis Is Warranted Under the Circumstances
The doctrine of stare decisis provides that "points of law established by a court are
generally followed by the same court and courts of lower rank in later cases in which the
same legal issue is raised." Hoesli v. Triplett, Inc., 303 Kan. 358, 362-63, 361 P.3d 504(2015). Because adherence to precedent promotes the stability of our legal system, "we
do not lightly disapprove of precedent." State v. Spencer Gifts, 304 Kan. 755, 766, 374
P.3d 680 (2016).
12
"While 'stare decisis is not an inexorable command,' this court endeavors to adhere to the
principle unless clearly convinced a rule of law established in its earlier cases '"was
originally erroneous or is no longer sound because of changing conditions and that more
good than harm will come by departing from precedent."' [Citations omitted.]" State v.
Hambright, 310 Kan. 408, 416, 447 P.3d 972 (2019).
We are not "clearly convinced" that Scherzer was originally erroneous or is no
longer sound because of changing conditions. McCroy explains that K.S.A. 60-2101 vests
appellate courts with jurisdiction to correct, modify, vacate, or reverse any act, order, or
judgment to ensure an outcome that is just, legal, and free of abuse—but only if the case
is properly before it. McCroy, 57 Kan. App. 2d at 650. The panel reasoned the phrase
"any case properly before it" in K.S.A. 60-2101 demonstrates that some other statute
must first expressly authorize an aggrieved party to appeal the act, order, or judgment of
the lower court before the appellate court can exercise its powers under K.S.A. 60-2101.
57 Kan. App. 2d at 650. McCroy further explains that "K.S.A. 60-2101 limits the
jurisdiction of both the Kansas Supreme Court and Court of Appeals in criminal cases to
those instances permitted in K.S.A. 22-3601 and K.S.A. 22-3602." 57 Kan. App. 2d at
650. In turn, McCroy reasons that K.S.A. 2018 Supp. 22-3602(b) enumerates four
instances "and no others" in which the State may appeal from a district court ruling in a
criminal case, and this list does not include an appeal challenging the legality of a
sentence. 57 Kan. App. 2d at 646-47. As such, McCroy held that K.S.A. 60-2101 and
K.S.A. 2018 Supp. 22-3602(b) foreclose appellate jurisdiction. 57 Kan. App. 2d at 651.
McCroy concludes that Scherzer "took an expansive view of appellate courts' inherent
authority" under K.S.A. 60-2101 that fails to account for the panel's statutory
construction. McCroy, 57 Kan. App. 2d at 650.
McCroy's statutory analysis, however, raises more questions than it resolves.
McCroy suggests the phrase "any case properly before it" within K.S.A. 60-2101
demonstrates that an aggrieved party must look beyond this statute to establish a right to
appeal. 57 Kan. App. 2d at 650. However, the Legislature used the phrase only in K.S.A.
13
60-2101(a), the subsection defining the jurisdiction of the Court of Appeals. It did not
include the same phrase in K.S.A. 60-2101(b), which defines the jurisdiction of the
Supreme Court. Instead, the Legislature made clear that "any decision of the court of
appeals shall be subject to review by the supreme court as provided in subsection (b) of
K.S.A. 20-3018." K.S.A. 60-2101(b). Likewise, the phrase is not included in K.S.A 60-
2101(d), which vests the district court with jurisdiction over appeals from judgments or
final orders of a political or taxing subdivision. Viewing these subsections together, the
phrase "in any case properly before it" in K.S.A. 60-2101(a) likely refers to those cases in
which the Court of Appeals is the proper jurisdictional forum for the initial appeal, as
specified within K.S.A. 60-2101—in other words, those cases in which an appeal is not
first taken with the district court under subsection (d) or directly to our court under
subsection (b). Under this construction, the phrase "any case properly before it" adds
little support for McCroy's holding.
Additionally, McCroy's declaration that "K.S.A. 60-2101 limits the jurisdiction of
both the Kansas Supreme Court and Court of Appeals in criminal cases to those instances
permitted in K.S.A. 22-3601 and K.S.A. 22-3602," is not a precise recitation of K.S.A.
60-2101. 57 Kan. App. 2d at 650. Instead, subsection (a) of the statute merely provides
that "[a]ppeals from the district court to the court of appeals in criminal cases shall be
subject to" these provisions. K.S.A. 60-2101(a). In subsection (b), the statute
contemplates that only "[d]irect appeals from the district court to the supreme court in
criminal cases shall be as prescribed by K.S.A. 22-3601 and 22-3602." So, while direct
criminal appeals to either the Court of Appeals or the Supreme Court are subject to
K.S.A. 22-3601 and K.S.A. 2020 Supp. 22-3602, the language of K.S.A. 60-2101 does
not expressly limit the jurisdiction of the appellate courts to only those instances
identified in those statutes. And, while McCroy focuses on the language of K.S.A. 2018
Supp. 22-3602(b), which purports to limit the State's right to appeal to four enumerated
situations and "no others," it fails to acknowledge that in subsection (f), the statute goes
on to authorize the State to appeal sentencing issues as prescribed in K.S.A. 2018 Supp.
14
21-6820. This suggests the Legislature vested appellate courts with jurisdiction over a
State's appeal in other statutory provisions.
McCroy also appears to overstate Scherzer's "expansive view of appellate courts'
inherent authority" under K.S.A. 60-2101. McCroy, 57 Kan. App. 2d at 650. Scherzer did
not rely on K.S.A. 60-2101 alone. It read this statutory provision together and in harmony
with the illegal sentence statute, K.S.A. 22-3504. Scherzer implicitly acknowledges that
these statutes, when read together, authorize an aggrieved party to bring an appeal
challenging an illegal sentence and enable appellate courts to exercise their powers of
review in such proceedings. In other words, Scherzer suggests K.S.A. 22-3504 provides
the mechanism through which an appeal challenging the legality of a sentence is properly
before the appellate court. See 254 Kan. at 929-30.
Scherzer's construction is defensible, particularly given the language of the
statutes in question. We have recognized that K.S.A. 2020 Supp. 22-3504 is a unique
statute, in authorizing Kansas courts to correct an illegal sentence "at any time." There is
ambiguity as to how far this authorization reaches. See State v. Swafford, 306 Kan. 537,
539-40, 394 P.3d 1188 (2017) ("The unique nature of K.S.A. 22-3504, allowing relief
from an illegal sentence 'at any time,' creates an ambiguity as to the time limit in which to
appeal the result in such a proceeding."). Yet, it is reasonable to infer that an aggrieved
party's authority to appeal an illegal sentence is incidental to the court's authority to
correct an illegal sentence at any time. In this regard, Scherzer's holding is not so much
an expansive view on the inherent authority of appellate courts under K.S.A. 60-2101, as
it is an acknowledgment of the uniquely broad grant of authority the Legislature provided
under K.S.A. 22-3504.
The panel in McCroy also suggests the placement of the illegal sentence statute in
Article 35 of the Code of Criminal Procedure, which governs posttrial motions, suggests
it is not jurisdictional. McCroy, 57 Kan. App. 2d at 648. But "The legislature is not
15
involved in the placement or numbering of statutes, and it is long established that '[t]he
placement of a law in a particular location in the General Statutes by the compiler is not
persuasive as to the intent of the legislature which enacted the statute.'" State v. Schuster,
273 Kan. 989, 994, 46 P.3d 1140 (2002) (quoting Arredondo v. Duckwall Stores, Inc.,
227 Kan. 842, Syl. ¶ 3, 610 P.2d 1107 [1980]). In contrast, Scherzer's interpretation of
the phrase "at any time" under K.S.A. 2020 Supp. 22-3504 is a more reliable gauge of
legislative intent.
And Scherzer is not the only decision to interpret K.S.A. 2020 Supp. 22-3504 in
this fashion. While only one case directly cites Scherzer as a basis for jurisdiction, see
State v. Vanwey, 262 Kan. 524, 527-28, 941 P.2d 365 (1997), Kansas courts have, in
other cases, implicitly recognized their authority to hear the State's appeal of an illegal
sentence. See State v. Webb, 20 Kan. App. 2d 873, 876, 893 P.2d 255 (1995) (dismissing
State's appeal for lack of jurisdiction under K.S.A. 22-3504 because defendant's sentence
was legal); see also State v. Taylor, 262 Kan. 471, 475, 939 P.2d 904 (1997) (stating in
dicta that "[a]lthough K.S.A. 22-3504 provides that the court may correct an illegal
sentence at any time, this does not relieve the State of its obligation to file an appeal
pursuant to K.S.A. 22-3504 and raise the issue"), abrogated on other grounds by Berreth,
294 Kan. 98. Even before Scherzer, our court exercised jurisdiction over State appeals
challenging the legality of a sentence. See State v. Ruff, 252 Kan. 625, 628-29, 847 P.2d
1258 (1993) (dismissing State's appeal of defendant's probation sentence for lack of
jurisdiction in part because the sentence was legal); State v. Keeley, 236 Kan. 555, 694
P.2d 422 (1985) (addressing State's appeal of sentence on the merits).
Arguably, the rationale in McCroy evidences possible ambiguity in K.S.A. 2020
Supp. 22-3504, when read together with K.S.A. 60-2101. But even if the statute's
language is arguably ambiguous, the doctrine of stare decisis is still a compelling reason
to uphold our precedent. McCullough v. Wilson, 308 Kan. 1025, 1035, 426 P.3d 49416
(2018) (regardless of whether statutory language is ambiguous, doctrine of stare decisis is
compelling reason to affirm lower courts' decision based on precedent).
Moreover, we have acknowledged "[t]he doctrine of stare decisis is particularly
compelling in cases where, as here, the legislature is free to alter a statute in response to
court precedent with which it disagrees but declines to do so." State v. Quested, 302 Kan.
262, 278, 352 P.3d 553 (2015); see McCullough, 308 Kan. at 1036. We note that more
than a quarter century (over 27 years) has passed since Scherzer was decided, and the
Legislature has not amended K.S.A. 2020 Supp. 22-3504 to overrule our interpretation of
the statute. In fact, during this time, the Legislature has amended K.S.A. 22-3504 on two
separate occasions, and neither amendment responded to nor altered Scherzer's statutory
construction. L. 2017, ch. 62, § 9; L. 2019, ch. 59, § 15. The Legislature has also
amended K.S.A. 22-3602 several times during this period without affecting the holding in
Scherzer. L. 1999, ch. 159, § 7; L. 2011, ch. 30, § 133; L. 2014, ch. 71, § 2. "The
legislature's continued, long-term acquiescence is a strong indication" the Scherzer court
gave effect to the intent of the Legislature in holding that K.S.A. 60-2101 and K.S.A.
2020 Supp. 22-3504(a) vest appellate courts with jurisdiction over a State's appeal of an
illegal sentence. Quested, 302 Kan. at 279.
For these reasons, we are not "clearly convinced" Scherzer was originally
erroneous or is no longer sound because of changing conditions, and we adhere to its
holding under the doctrine of stare decisis. Applying Scherzer, we hold the Court of
Appeals properly exercised jurisdiction over the State's appeal and our jurisdiction is
likewise proper.
Clark's 2019 Sentence Is Illegal
In its opening brief, the State argues the district court imposed an illegal sentence
at Clark's resentencing in 2019. In response, Clark argues his 2019 sentence should stand
17
because the district court correctly calculated his criminal history score in accordance
with Wetrich. Before reaching the merits of this argument, it is first helpful to review
how sentencing law has evolved over the time period relevant to this appeal.
Development and Evolution of Relevant Sentencing Law
Our court has long defined an illegal sentence as a sentence imposed by a court
without jurisdiction; a sentence that does not conform to the applicable statutory
provision, either in character or punishment; or a sentence that is ambiguous with respect
to the time and manner in which it is to be served. See, e.g., State v. Thomas, 239 Kan.
457, 460, 720 P.2d 1059 (1986). In 2017, the Legislature codified this definition, but
clarified "[a] sentence is not an 'illegal sentence' because of a change in the law that
occurs after the sentence is pronounced." L. 2017, ch. 62, § 9; K.S.A. 2017 Supp. 22-
3504(3).
Clark filed his motion to correct an illegal sentence shortly before the 2017
amendments took effect, and the district court denied the motion later that year. In
denying the motion, the district court relied on State v. Vandervort, 276 Kan. 164, 179,
72 P.3d 925 (2003), overruled on other grounds by State v. Dickey, 301 Kan. 1018, 350
P.3d 1054 (2015), which held that "[f]or purposes of determining criminal history, the
[out-of-state offense and Kansas offense] need only be comparable, not identical" under
K.S.A. 2000 Supp. 21-4711(e) (later codified as K.S.A. 21-6811[e]). Under this
construction of the statute, the district court concluded that Clark's out-of-state conviction
was "comparable" to the Kansas crime of battery of a law enforcement officer and
classified the out-of-state conviction as a person offense. Clark appealed.
In 2018, while Clark's appeal was still pending, we issued Wetrich, which altered
Vandervort's interpretation of K.S.A. 2017 Supp. 21-6811(e). In Wetrich, we construed
the term "comparable" in K.S.A. 2017 Supp. 21-6811(e) to mean identical or narrower.
18
Thus, for an out-of-state crime to count as a person offense, Wetrich held the elements of
the out-of-state crime had to be identical to, or narrower than, the elements of the Kansas
crime to which it was being referenced. Wetrich, 307 Kan. at 562.
In 2019, the Court of Appeals issued Clark I, reversing the district court's denial of
Clark's motion to correct an illegal sentence. The panel found that, under the identical-or-
narrower approach identified in Wetrich, the Oklahoma offense for placing bodily fluids
on a government employee was not comparable to any Kansas offense, and thus the
district court erred in denying Clark's motion. Clark I, 2019 WL 1746772, at *5-6. The
panel also held that it need not decide whether the 2017 amendments to K.S.A. 22-3504
applied retroactively because Wetrich was not a change in the law. The panel vacated the
district court's judgment and remanded for resentencing with Clark's Oklahoma
conviction classified as a nonperson felony. Clark I, 2019 WL 1746772, at *6.
On the same day the Court of Appeals issued Clark I, we issued State v. Murdock,
309 Kan. 585, 439 P.3d 307 (2019) (Murdock II). There, we held the legality of a
sentence under K.S.A. 2018 Supp. 22-3504 is controlled by the law in effect at the time
the sentence was pronounced. 309 Kan. at 591; see State v. Dawson, 310 Kan. 112, 117,
444 P.3d 914 (2019) (same); State v. Tauer, 310 Kan. 1, 4, 444 P.3d 936 (2019) (same).
Shortly after we issued Murdock II, the Kansas Legislature's 2019 amendments to
K.S.A. 22-3504 went into effect. L. 2019, ch. 59, § 15, eff. May 23, 2019. Those
amendments defined a "change in the law" as "a statutory change or an opinion by an
appellate court of the state of Kansas, unless the opinion is issued while the sentence is
pending an appeal from the judgment of conviction." L. 2019, ch. 59, § 15; K.S.A. 2019
Supp. 22-3504(c)(2). The Legislature deemed the 2019 amendments to be procedural and
retroactive. L. 2019, ch. 59, § 15; K.S.A. 2019 Supp. 22-3504(d).
19
While the remand from Clark I was still pending before the district court, we also
issued State v. Weber, 309 Kan. 1203, 1209, 442 P.3d 1044 (2019), which held that
Wetrich constituted a change in law for the purposes of determining whether a
defendant's sentence was illegal under K.S.A. 2018 Supp. 22-3504. See also State v.
Newton, 309 Kan. 1070, 1073-74, 442 P.3d 489 (2019) (same).
Based on these legal developments, the State claims Clark's 2019 sentence is
illegal. Relying on Tauer and Dawson, the State argues the legality of Clark's sentence
must be determined in accordance with the law in effect in 2005. According to the State,
Wetrich cannot render Clark's 2005 sentence illegal because that decision was a change in
law decided in 2018.
Standard of Review
Whether a sentence is illegal is a question of law over which we have unlimited
review. State v. Sartin, 310 Kan. 367, 369, 446 P.3d 1068 (2019). To decide whether
Clark's sentence is illegal, we must determine the proper classification of his prior
convictions for the purpose of calculating his criminal history score. The resolution of
this issue involves interpretation of the Kansas Sentencing Guidelines Act. Like the
legality of a sentence, statutory interpretation is a question of law over which we have
unlimited review. State v. Bryant, 310 Kan. 920, 921, 453 P.3d 279 (2019).
The Law in Effect in 2005 Applies in Determining the Legality of Clark's Sentence
The Court of Appeals, in Clark II, found the district court incorrectly calculated
Clark's criminal history score at resentencing. In making this determination, the panel
applied the law as it existed at the time of Clark's original sentencing in 2005. Clark
argues this is error. Because the Court of Appeals vacated Clark's original sentence in
20
Clark I, he claims the district court correctly applied the law as it existed at the time of
his resentencing in 2019.
We agree with the Court of Appeals that for purposes of determining the legality
of Clark's sentence, the law from the date of his original sentencing should control. After
all, this case arose from Clark's 2017 motion to correct his 2005 sentence. Clark's
resentencing in 2019 only occurred because Clark I held his 2005 sentence was illegal—a
holding that became erroneous as a result of decisions we issued prior to Clark's
resentencing in 2019. Thus, if Clark's sentence was lawful in 2005, he should have never
been resentenced in 2019.
Murdock II confirms "[t]he legality of a sentence is fixed at a discrete moment in
time—the moment the sentence was pronounced." 309 Kan. at 591. The legality of
Clark's sentence became "fixed" when his sentence was pronounced in 2005. Thus,
whether his prior Oklahoma conviction is comparable to a Kansas offense should be
determined under the law as it existed in 2005. Thus, Vandervort's interpretation of
K.S.A. 21-4711(e), rather than Wetrich's "identical or narrower" construction, controls
because Wetrich had not been decided in 2005. Furthermore, in State v. Keel, 302 Kan.
560, 589-90, 357 P.3d 251 (2015), we held the punishment for a crime, as it relates to the
classification of prior convictions for criminal history purposes, is set at the time the
crime of conviction is committed. Keel thus lends further support for applying
Vandervort, rather than Wetrich, in determining whether Clark's sentence is illegal.
Clark's Original Sentence Is Legal Under the Law in 2005, and Clark's 2019
Sentence Is Illegal
When classifying an out-of-state conviction for criminal history purposes, the
statute requires the sentencing court follow a two-step process: first, determining
whether the prior conviction is a felony or misdemeanor; and then determining whether
21
the crime should be classified as a person or nonperson offense. See K.S.A. 2003 Supp.
21-4711(e). Because neither party disputes the Oklahoma crime of placing bodily fluids
on a government employee is a felony, we move directly to the second step.
In determining whether a prior out-of-state conviction should be classified as a
person or nonperson offense, courts compare the out-of-state conviction with the
comparable Kansas offense in effect at the time defendant committed the current crime of
conviction. K.S.A. 2003 Supp. 21-4711(e); Keel, 302 Kan. at 590. For purposes of
exploring the validity of Clark's 2005 sentence, the Kansas offense need not be identical.
Instead, the Kansas offense that is the closest approximation to the out-of-state offense is
the comparable offense. Vandervort, 276 Kan. at 179. If there is no comparable Kansas
offense, then the prior out-of-state conviction must be classified as a nonperson crime.
K.S.A. 2003 Supp. 21-4711(e).
Clark's PSI report evidenced his prior conviction for "Placing Bodily Fluids Upon
[a] Government Employee" under Okla. Stat. tit. 21, § 650.9 (1999). That statute defines
the crime as follows:
"Every person in the custody of the state, a county or city or a contractor of the
state, a county or a city who throws, transfers or in any manner places feces, urine,
semen, saliva or blood upon the person of an employee of the state, a county or a city or
an employee of a contractor of the state, a county or a city shall, upon conviction thereof,
be guilty of a felony." Okla. Stat. tit. 21, § 650.9According to Clark, his Oklahoma conviction should be compared to battery of a
law enforcement officer under K.S.A. 2003 Supp. 21-3413(a)(1). That statute provides:
"Battery against a law enforcement officer is a battery, as defined in K.S.A. 21-3412 and
amendments thereto:
22
"(a) (1) Committed against a uniformed or properly identified state,
county or city law enforcement officer, other than a state correctional officer or
employee, a city or county correctional officer or employee, a juvenile
correctional facility officer or employee or a juvenile detention facility officer or
employee, while such officer is engaged in the performance of such officer's
duty."
K.S.A. 2003 Supp. 21-3412(a) defines battery as:
"(1) Intentionally or recklessly causing bodily harm to another person; or
"(2) intentionally causing physical contact with another person when done in a
rude, insulting or angry manner."
In Clark II, the Court of Appeals held that under Vandervort, Clark's conviction
under Okla. Stat. tit. 21, § 650.9 is comparable to the Kansas crime of battery against a
law enforcement officer as defined in K.S.A. 2003 Supp. 21-3413. Clark II, 2020 WL
1903820, at *3. We agree. While Okla. Stat. tit. 21, § 650.9 does not contain an intent
element, it involves a touching comparable to the Kansas crime of battery. And the
Kansas' crime of battery against a law enforcement officer is the closest approximation to
the Oklahoma crime of placing bodily fluids on a government employee. Accordingly,
we affirm the Court of Appeals' judgment that Clark's 2019 sentence is illegal.
On review, Clark does not challenge the Court of Appeals' comparability analysis
under Vandervort. Instead, he argues that his 2019 sentence should stand for two other
reasons: (1) the mandate rule required the district court to resentence him in accordance
with the Court of Appeals' decision in Clark I; and (2) the doctrine of constitutional
avoidance required the sentencing court to apply the rule identified in Wetrich.
23
The Mandate Rule Does Not Render the 2019 Sentence Legal
"In Kansas, . . . the mandate rule is a statutory imperative that requires lower
courts follow the mandates issued by appellate courts." State v. Cheeks, 313 Kan. __,
___, 482 P.3d 1129, 1134 (2021). This rule arises from two statutory provisions. K.S.A.
60-2106(c) provides, in part, that the mandate and accompanying opinion of an appellate
court "shall be controlling in the conduct of any further proceedings necessary in the
district court." Also, K.S.A. 20-108 provides that the appellate courts may require the
district court to execute the appellate court's judgment "according to the command of the
appellate court made therein."
In Clark I, the Court of Appeals vacated the district court's judgment and
remanded for resentencing with Clark's Oklahoma conviction classified as a nonperson
felony. Clark I, 2019 WL 1746772, at *6. Thus, under the mandate in Clark I, the district
court had to resentence Clark with a criminal history of C. But in Clark II, the Court of
Appeals held that the district court was not bound by Clark I's mandate at resentencing.
The Clark II panel recognized an exception to the mandate rule when a controlling
authority issues an intervening change in the applicable law. Clark II, 2020 WL 1903820,
at *4 (quoting State v. Montanez, No. 114,473, 2017 WL 749031, at *2 [Kan. App. 2017]
[unpublished opinion]). Because Weber and Newton confirmed that Wetrich was a change
in the law, as contemplated by Murdock II, the panel concluded the district court was no
longer bound by Clark I's mandate at the time of resentencing in 2019. Clark II, 2020
WL 1903820, at *4.
However, the "intervening change in the law exception" the panel relied on in
Clark II, applies only to the law of the case doctrine—a rule created by common law. We
have declined to extend this exception to the statutorily derived mandate rule. So,
"[w]hile different panels of the Court of Appeals hearing successive appeals in the same
case may, in exceptional circumstances, depart from the law of the case, under Kansas
24
law no exceptional circumstances permit a lower court to circumvent the mandate of a
higher court." Building Erection Svcs. Co. v. Walton Construction Co., 312 Kan. 432,
Syl. ¶ 1, 475 P.3d 1231 (2020). This holds true "even when a change in the law has
occurred." State v. Kleypas, 305 Kan. 224, 297, 382 P.3d 373 (2016).
What, then, is a district court to do when an appellate court's mandate effectively
requires the district court to impose an illegal sentence? In the situation before us, the
district court ideally would have resentenced Clark in accordance with Clark I's mandate,
then construed the State's challenge to the legality of that sentence as a motion to correct
an illegal sentence. Under K.S.A. 2020 Supp. 22-3504, which authorizes the court to
correct an illegal sentence at any time, the district court would then have corrected the
sentence based on our intervening decisions in Murdock II and Weber.
We realize the district court was placed in the unenviable position of having to
choose between a Court of Appeals mandate and Kansas Supreme Court precedent with
no clear direction on how to proceed. And we do not fault the district court for complying
with the mandate. Rather, the district court error is a technical one arising from the failure
to subsequently correct the illegal sentence mandated by Clark I. Because of this
procedural technicality, Clark's 2019 sentence is illegal, and he should be resentenced
with his Oklahoma conviction for placing bodily fluids on a government employee
classified as a person felony.
We would be remiss not to mention the State could have avoided this complicated
analysis and saved the district court from the difficult dilemma it faced at the 2019
resentencing, if it had simply filed a petition for review of Clark I. After all, Murdock II
was released on the same date. Ordinarily, the State's failure to do so would have been
fatal. Building Erection Svcs. Co., 312 Kan. 432, Syl. ¶ 2 ("A party who fails to petition
the Kansas Supreme Court for review of a Court of Appeals decision is bound by the
holding of that decision."). However, the Legislature's broad grant of authority enabling
25
courts to correct an illegal sentence at any time resurrected the State's challenge. K.S.A.
2020 Supp. 22-3504(a). But for this statute, the State's neglect would likely have
produced a different outcome.
The Doctrine of Constitutional Avoidance Does Not Render the 2019 Sentence
Legal
Alternatively, Clark argues the doctrine of constitutional avoidance requires the
court to apply Wetrich's identical-or-narrower rule to all sentences imposed after the
United States Supreme Court opinion in Apprendi v. New Jersey, 530 U.S. 466, 120 S.
Ct. 2348, 147 L. Ed. 2d 435 (2000). The doctrine of constitutional avoidance is a rule of
statutory construction. It imposes a duty on the court to "construe a statute as
constitutionally valid when it is faced with more than one reasonable interpretation."
Hoesli, 303 Kan. at 367-68. "In other words, 'if a court can genuinely, reasonably,
plausibly, or fairly interpret and construe statutory language consistent with legislative
intent in a manner that also preserves it from impermissibly encroaching on constitutional
limits, the court must do so.'" Johnson v. U.S. Food Serv., 312 Kan. 597, 602, 478 P.3d
776 (2021).
Clark argues that Wetrich's interpretation of the term "comparable" is the only
constitutional interpretation of K.S.A. 2000 Supp. 21-4711(e) (later codified as K.S.A.
21-6811[e]) in light of Apprendi. While Wetrich did not rely on this doctrine to reach its
result, Clark urges us to now hold that Wetrich's outcome is mandated by this doctrine.
Such a holding would, in effect, make Wetrich's identical-or-narrower rule operative from
2000, the year Apprendi was issued.
We find this argument unpersuasive. In Vandervort, we explicitly rejected the
statutory construction that Clark claims is compelled by Apprendi. See Vandervort, 276
Kan. at 179 ("Vandervort confuses the term 'comparable' with the concept of identical
26
elements of the crime."). Notably, Vandervort was decided three years after Apprendi.
Furthermore, before Wetrich, no other Kansas case construed the term "comparable" as
encompassing the identical-or-narrower requirement. Thus, Wetrich, not Apprendi,
created the new construction of the term "comparable" as used in K.S.A. 2020 Supp. 21-
6811(e)(3). And because Wetrich was a change in the law, it cannot render Clark's 2005
sentence illegal at the time of pronouncement. Weber, 309 Kan. at 1209; see Murdock II,
309 Kan. at 591.
Further, while Clark characterizes his argument as one of statutory construction,
the essence of his challenge appears to be that the application of the rule in Vandervort
would render his sentence unconstitutional under Apprendi. But the issues in this appeal
arise under the illegal sentence statute, K.S.A. 2020 Supp. 22-3504. The statute defines
an "illegal sentence" narrowly to exclude claims that the sentence is illegal because it
violates a constitutional provision. State v. Hayes, 312 Kan. 865, 868, 481 P.3d 1205(2021). Therefore, to the extent Clark's issue is based on an Apprendi challenge under the
Sixth Amendment, it necessarily fails. 312 Kan. at 869.
Based on the foregoing analysis, we affirm the judgment of the Court of Appeals,
reverse the judgment of the district court, vacate Clark's 2019 sentence, and remand for
resentencing consistent with this opinion.
STANDRIDGE, J., not participating.
27