Discovery of additional prior convictions does not result in illegal sentence

Kai Tate Mann won in State v. Schulze, No. 119,184 (Kan. App. July 26, 2019), obtaining a new sentencing hearing in a Saline County theft prosecution. After being sentenced using criminal history category C, the state discovered some additional prior convictions. The state filed a motion to correct illegal sentence, which the district court granted, resentencing Mr. Schulze using criminal history category B. The COA cited two previous KSC cases and held that the state's failure to challenged the PSI at sentencing precluded it a later challenge regarding the existence (or non-existence) of prior convictions (at least in the same case)

While Lehman may have declined to apply the invited error rule to the requested illegal sentences, it did not negate the earlier distinction made between factual and legal stipulations. The State has not cited any cases suggesting the Kansas Supreme Court is departing from this distinction. Based on [State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015)] and [State v. Weber, 297 Kan. 805, 304 P.3d 1262 (2013)], the State cannot now challenge the factual basis for Schulze's criminal history score because it failed to object to it before the district court.

Because the original sentence was not illegal, the COA remanded with directions to resentence based on the first PSI report.

[Update, the state did not file a PR and the mandate issued on September 3, 2019].