Judge has discretion to run multiple sentences concurrently

James M. Latta won in State v. Dunham, No. 121,081 (Kan. App. July 31, 2020), obtaining a new sentencing hearing in a a Saline County drug prosecution. Mr. Dunham pleaded guilty to charges involving conduct occurring why he was on probation from other charges.  The district court ran the sentences for the new charges consecutively and held that it did not have discretion to run them concurrently. After carefully reviewing the statutory history of the relevant sentencing statutes, the COA held this was erroneous:

Dunham had multiple sentences imposed on different cases on the same day. In the case of multiple sentences, [State v. Edwards, 252 Kan. 860, 852 P.2d 98 (1993)] guides our decision. Edwards informs us that the court has complete discretion under K.S.A. 1992 Supp. 21-4608(1) (now codified at K.S.A. 2019 Supp. 21-6606[a]) to run the sentences either consecutively or concurrently. That is, K.S.A. 2019 Supp. 21-6606(c), (d), and (e) play no role in multiple sentencing cases unless the sentencing court fails to address whether the multiple sentences run concurrently or consecutively. Edwards' interpretation of the previous version of K.S.A. 2019 Supp. 21-6606(a) thus allows a court flexibility—regardless of the sentence ordered in any individual case (such as consecutive prison terms included in the sentence for Case 3)—to run the sentences in multiple cases concurrently or consecutively as the court finds appropriate.

Because Dunham was sentenced for multiple crimes on the same day, the court erred in finding that it was required to run the sentences consecutively. We note Edwards is still good law and we are duty bound to follow Supreme Court precedent unless there is some indication that the Kansas Supreme Court is departing from its previous position. As in Edwards, this case must be remanded to allow the district court to exercise its discretion in determining whether Dunham's sentences in Cases 4 and 5 should run concurrently or consecutively with each other and with Case 3.

[Update: the state did not file a PR and the mandate issued on September 8, 2020.]