Cannot modify non-vacated sentences on remand

Patrick H. Dunn won in State v. Warren, No. 115,972 (Kan. March 9, 2018), obtaining a new sentencing hearing in a Wyandotte County murder prosecution. On direct appeal, the KSC reversed Mr. Warren's hard 50 sentence. On remand, the district court imposed a hard 25 sentence, but also increased two other sentences that had not been vacated in the direct appeal and ran those sentences consecutive to the hard 25 sentence, as opposed to concurrently, as originally ordered. The KSC reaffirmed and applied State v. Guder, 293 Kan. 763, 267 P.3d 751 (2012), holding that the Kansas Sentencing Guidelines act prohibits modification of guidelines sentences unless reversed. In the instant case, that meant that the district court could not increase the non-vacated sentences on remand:

We explicitly held in Guder that the KSGA statutory changes to sentencing abrogated the common law authority of district courts to modify any sentences that were not vacated on appeal. Applying that holding here requires that Warren's original 7 sentences for counts 2 and 3—each for 155 months and running concurrent to count 1— be reinstated.

The KSC also rejected the state's claim that, because the hard 50 sentence had been vacated, the district court could make it consecutive to the non-vacated sentences on remand:

To begin our analysis, we acknowledge that typically a district court has the discretion on whether to originally impose concurrent or consecutive sentences in multiple conviction cases. This rule is necessarily subject, however, to our holding that on remand only the vacated sentence can be changed. And to change Warren's sentence for the premeditated first-degree murder conviction from concurrent with—to consecutive to—the others would be an impermissible de facto modification of them.

Simply put, when Warren was first sentenced, because each count was to run concurrent, he was effectively serving each of his three sentences. Changing the life sentence from concurrent to consecutive on remand would make all of Warren's served time count toward only the premeditated first-degree murder sentence for the first 25 years, i.e., the sentences for the other crimes would not begin until completion of his hard 25. See K.S.A. 21-4720(b)(2) ("If sentences for off-grid and on-grid convictions are ordered to run consecutively, the offender shall not begin to serve the on-grid sentence until paroled from the off-grid sentence."). So the effect of this change constitutes an improper modification of the nonvacated second and third sentences.

So Mr. Warren's cases was returned to the district court with directions to reinstate the original concurrent guidelines sentences.