                                        No. 119,184

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                      STATE OF KANSAS,
                                          Appellee,

                                              v.

                                  DUSTIN ELIE SCHULZE,
                                       Appellant.


                              SYLLABUS BY THE COURT


1.
       Whether a sentence is illegal within the meaning of K.S.A. 2018 Supp. 22-3504 is
a question of law over which the appellate court has unlimited review.


2.
       A sentence is illegal under K.S.A. 2018 Supp. 22-3504 when: (1) it is imposed by
a court without jurisdiction; (2) it does not conform to the applicable statutory provisions,
either in character or punishment; or (3) it is ambiguous with respect to the time and
manner in which it is to be served.


3.
       The State has the burden to prove the defendant's criminal history.


4.
       If the State fails to find a conviction or convictions in a defendant's criminal
history, the State is prohibited from later amending, and ultimately increasing, the
severity level of a defendant's criminal history for the crime or crimes at issue.



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5.
        The State cannot later challenge the factual basis for a defendant's criminal history
score when it failed to object to it before the district court.


        Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed July 26, 2019.
Sentence vacated and case remanded with directions.


        Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.


        Brock R. Abbey, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt,
attorney general, for appellee.


Before SCHROEDER, P.J., GREEN and POWELL, JJ.


        SCHROEDER, J.: Dustin E. Schulze appeals the district court's decision to approve
the State's motion to correct an illegal sentence, which the State filed after discovering his
original presentence investigation (PSI) report failed to contain all of his prior
convictions. The district court originally sentenced Schulze based on a criminal history
score of C. The amended PSI report had five more convictions, two of which were person
misdemeanors. The new PSI report changed Schulze's criminal history score from a C to
a B. The district court found it needed to resentence Schulze based on his new criminal
history score. Schulze now argues his sentence was not illegal and the district court had
no authority under these facts to resentence him. We agree with Schulze, finding his
original sentence controls since it was based on the criminal history the State proved at
the time of his original sentencing. Reversed and remanded with directions.


                                                FACTS

        After pleading no contest to felony theft, Schulze appeared for sentencing. His PSI
report showed he had a criminal history score of C, listing 18 prior convictions. Schulze

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agreed with the PSI report and its finding he had a criminal history score of C, resulting
in a sentence of presumptive probation. K.S.A. 2016 Supp. 21-6804(a). The State
recommended Schulze be sentenced to prison, based on his criminal history score and the
fact this crime occurred while he was on felony bond. The district court disagreed with
the State's recommendation and sentenced Schulze to 12 months' imprisonment,
suspended to serve 12 months on probation, to run consecutive to a 40-month prison
sentence he was already serving in another case.


       Shortly after the original sentencing, court services provided an amended PSI
report to the district court, listing 23 prior convictions, including two person
misdemeanors not included in the original report. The amended PSI combined the two
newly discovered person misdemeanors with a person misdemeanor included in his
original PSI report to aggregate the three person misdemeanors to a person felony. With
the new aggregation, Schulze's criminal history score increased from a C to a B. K.S.A.
2017 Supp. 21-6811(a).


       The district court informed the parties that court services had been given the
wrong sentencing date and had not updated Schulze's PSI report in time for his original
sentencing. The State then moved to correct an illegal sentence under K.S.A. 2017 Supp.
22-3504. It argued Schulze's sentence was illegal because it was based on a criminal
history score that did not include all his prior convictions.


       At the hearing, the district court granted the State's motion. The court held
Schulze's sentence violated an applicable statutory provision requiring all of a defendant's
prior convictions to be counted separately in his criminal history. The court also held,


       "[T]he case law in Kansas is clear that the Court can correct an illegal sentence at any
       time, and that routinely happens, even without objection at the time of sentencing on
       appeal when it is in another light. For example, if a criminal history classification was


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       improperly scored, no objection was made at sentencing, to the detriment of the
       defendant, the appellate courts simply send that back down for the district court to
       correct. This is the opposite of that situation in which the original criminal history
       omitted two misdemeanor offenses from a case which should have been included in the
       criminal history."


       Based on the amended PSI report, Schulze's sentence changed to a presumptive
prison sentence with a range of 13 to 15 months. K.S.A. 2016 Supp. 21-6804(a). Schulze
moved for a dispositional departure. The district court granted the motion and
resentenced Schulze to 14 months' imprisonment, but granted 12 months' probation to
once again run consecutive to the other 40 month prison sentence he was serving in
another case.


                                               ANALYSIS

       On appeal, Schulze contends his original sentence was legal and the district court
erred in resentencing him. He points out the State failed to object to his criminal history
at his original sentencing hearing. Because the State failed to challenge the existence or
nonexistence of his prior convictions at the original sentencing, he argues the State does
not get a second chance.


       The State responds by arguing Schulze's original sentence was illegal because it
was based on an inaccurate criminal history. The State further contends parties may not
stipulate to an illegal sentence, and because courts may correct an illegal sentence at any
time, the State asserts the district court did not err in resentencing Schulze.


Standard of review

       Whether a sentence is illegal within the meaning of K.S.A. 2018 Supp. 22-3504 is
a question of law over which the appellate court has unlimited review. State v. Jamerson,

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309 Kan. 211, 214, 433 P.3d 698 (2019). "A sentence is illegal under K.S.A. 22-3504
when: (1) it is imposed by a court without jurisdiction; (2) it does not conform to the
applicable statutory provisions, either in character or punishment; or (3) it is ambiguous
with respect to the time and manner in which it is to be served. [Citation omitted.]" State
v. Hayes, 307 Kan. 537, 538, 411 P.3d 1225 (2018).


The sentence when imposed was legal.


       The district court found Schulze's sentence was illegal because it did not conform
to K.S.A. 2017 Supp. 21-6810(c) and (d)(6). K.S.A. 2017 Supp. 21-6810(c) states
"Except as otherwise provided, all convictions . . . shall be counted separately in the
offender's criminal history." K.S.A. 2017 Supp. 21-6810(d)(6) states "All person
misdemeanors . . . shall be considered and scored" when determining a defendant's
criminal history score. The district court held Schulze's original criminal history score did
not conform to these provisions because it did not include all of his prior person
misdemeanors.


       Even so, Schulze argues his original sentence was not illegal because the State did
not object to his criminal history. He compares his case to State v. Oliver, 30 Kan. App.
2d 665, 46 P.3d 36 (2002). There, the district court found the defendant had a criminal
history score of C. The State did not object to the criminal history score and told the court
the defendant's municipal convictions could not be aggregated. The State later moved to
correct an illegal sentence, arguing some of the defendant's municipal convictions should
have been aggregated, resulting in a criminal history score of B. The district court granted
the State's motion and resentenced the defendant.


       On appeal, this court vacated the defendant's sentence and remanded to reinstate
the original sentence. 30 Kan. App. 2d at 667-68. The Oliver court held: "'When the
State agrees to a defendant's criminal history, even if the criminal history is incorrect, the

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sentence imposed based on that criminal history is not illegal because it is a proper
sentence for the agreed upon grid block.'" 30 Kan. App. 2d at 667 (quoting Neal v. State,
25 Kan. App. 2d 705, 705-06, 971 P.2d 748 [1998]). The Oliver court also found:


               "This court has repeatedly held that a sentence within the wrong sentencing grid
       block under the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq., is not an
       illegal sentence when the criminal history category was stipulated to by the parties. Neal,
       25 Kan. App. 2d at 705; Thompson v. State, 25 Kan. App. 2d 659, 967 P.2d 361 (1998);
       State v. McBride, 23 Kan. App. 2d 302, 304, 930 P.2d 618 (1996); State v. Tolliver, 22
       Kan. App. 2d 374, 380, 916 P.2d 725 (1996). The justification behind this rule is that one
       who invites error by his or her own acts cannot then complain or take advantage of it on
       appeal. Neal, 25 Kan. App. 2d at 706." Oliver, 30 Kan. App. 2d at 667.


       While Oliver weighs in Schulze's favor, it was decided over 17 years ago, and the
invited error doctrine has changed. When Oliver was decided, some Kansas caselaw held
the invited error rule prevented parties from challenging an illegal sentence on appeal if
they had stipulated to or failed to object to the defendant's criminal history. For example,
in State v. McBride, 23 Kan. App. 2d 302, Syl. ¶ 3, 930 P.2d 618 (1996), overruled by
State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015), a panel of this court held "[a]
defendant who invites error by stipulating to his or her criminal history cannot request a
correction of sentence under K.S.A. 22-3504 after pronouncement of sentence." See also
State v. Goeller, 276 Kan. 578, 585, 77 P.3d 1272 (2003), overruled by Dickey, 301 Kan.
1018; State v. Vandervort, 276 Kan. 164, 175-76, 72 P.3d 925 (2003), overruled by
Dickey, 301 Kan. 1018. And Oliver relied on McBride in reaching its holding. Oliver, 30
Kan. App. 2d at 667.


       But another line of cases distinguishes between a stipulation to the factual basis
for the defendant's criminal history and a stipulation to its legal effect. In State v.
Donaldson, 35 Kan. App. 2d 540, 544, 133 P.3d 154 (2006), a panel of this court held
"no party can properly stipulate to an incorrect application of the law." As a result, "the

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defendant's failure to object to his criminal history score . . . merely prevents him from
challenging the factual basis for the criminal history classification." 35 Kan. App. 2d at
544.


       Our Supreme Court reached the same conclusion in State v. Weber, 297 Kan. 805,
813-14, 304 P.3d 1262 (2013). There, the defendant challenged the district court's
designation of his prior out-of-state conviction as a sexually violent crime to classify him
as an aggravated habitual sex offender and impose an enhanced sentence. The State
argued the defendant's challenge was barred because he had failed to challenge the
classification at sentencing.


       The Weber court agreed the defendant "should be bound by his counsel's
stipulation of fact in the district court with respect to his criminal history, i.e., the factual
stipulation that [the defendant] was convicted in [another state] of the crime of assault
with intent to commit criminal sexual contact in the second degree." 297 Kan. at 814. But
the court held the "factual stipulation does not answer the question before us, which is:
what is the legal effect of that prior conviction on the imposition of an enhanced
sentence." 297 Kan. at 814. The Weber court concluded defense counsel's stipulation did
not bar it from reviewing the legal conclusion drawn from the admitted facts. 297 Kan. at
814-15.


       A few years after Weber, our Supreme Court in Dickey overruled Vandervort,
Goeller, and McBride, holding:


       "[A] defendant's stipulation or failure to object at sentencing will prevent the defendant
       from later challenging the existence of the convictions listed in his or her criminal
       history. But a stipulation or lack of an objection regarding how those convictions should
       be classified or counted as a matter of law for the purpose of determining the defendant's
       criminal history score will not prevent a subsequent challenge under K.S.A. 22-3504(1)
       of his or her prior convictions. [Citation omitted.]" Dickey, 301 Kan. at 1032.

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       While Oliver has never explicitly been overruled, it relied on caselaw which has
been overruled. Oliver also held the State's stipulation to the legal conclusion drawn from
the defendant's convictions prevented the State from later challenging the sentence. But
parties may not stipulate to the legal conclusions drawn from the defendant's prior
convictions. Dickey, 301 Kan. at 1032. Thus, we do not find Oliver helpful or persuasive.


       However, the district court appears to have erred in modifying Schulze's sentence.
As Schulze points out, Kansas courts have distinguished between a stipulation to the
factual basis for a defendant's criminal history and a stipulation to its legal effect.
Donaldson, 35 Kan. App. 2d at 544. The invited error rule may preclude review of the
former but not the latter. Schulze argues the State's failure to object at the sentencing
hearing is more akin to a stipulation to the factual basis of his criminal history score. And
under Weber and Dickey, the State cannot now challenge the existence, or nonexistence,
of Schulze's prior convictions.


       Schulze also cites State v. Tolliver, 22 Kan. App. 2d 374, 916 P.2d 725 (1996). In
Tolliver, the parties agreed with the PSI report showing the defendant had no criminal
history and the district court sentenced him accordingly. The State later moved to set
aside the defendant's sentence as illegal, alleging he actually had a lengthy criminal
history and was on parole when he committed the crime of conviction. The district court
granted the State's motion and resentenced the defendant based on the higher criminal
history score.


       On appeal, this court vacated the defendant's sentence and remanded the case to
reinstate the original sentence. This court held the original sentence was not illegal
because it was the appropriate sentence for the agreed upon criminal history score, even
if the score was incorrect. In reaching this conclusion, this court explained the State has
the burden to prove the defendant's criminal history unless the defendant admits his or
her criminal history in court, and the defendant does not have to provide the State with an

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accurate criminal history. Because the defendant had not admitted his criminal history,
the State had to prove it at the sentencing hearing and the State failed to carry this burden.
22 Kan. App. 2d at 380-81. Another panel of this court summarized Tolliver as
"embod[ying] the principle that if the State fails to find a conviction or convictions in a
defendant's criminal history, the State is prohibited from later amending, and ultimately
increasing, the severity level of a defendant's criminal history for the crime or crimes at
issue." State v. Strickland, 23 Kan. App. 2d 615, 621, 933 P.2d 782 (1997).


       Tolliver is factually distinguishable. It relied on the rule the State must prove a
defendant's criminal history unless the defendant admits his or her history in court. 22
Kan. App. 2d at 380 (citing State v. Hankins, 19 Kan. App. 2d 1036, 1047, 880 P.2d 271
[1994]); see also K.S.A. 2017 Supp. 21-6814(a) and (b). In Tolliver, the defendant did not
admit to his criminal history, but Schulze did in this case. Nevertheless, Tolliver supports
Schulze's argument, as the State is trying to add newly discovered convictions after his
original sentencing.


       The State responds parties may not stipulate to an illegal sentence and the invited
error rule does not apply, citing State v. Lehman, 308 Kan. 1089, 427 P.3d 840 (2018). In
Lehman, the State recommended the wrong period of postrelease supervision, and the
district court sentenced Lehman based on the State's recommendation. The State later
moved to correct an illegal sentence, arguing the State recommended term of postrelease
supervision was not authorized by statute. The Lehman court held invited error did not
preclude the State's motion:


       "[W]e do not allow the parties to agree upon or stipulate to an illegal sentence. . . . A
       corollary to the proposition that a party is not bound by his or her stipulation to an illegal
       sentence is that a party cannot be bound by a requested illegal sentence through the
       invited error doctrine. An illegal sentence may be corrected regardless of whether one or
       more parties may have had a hand in arriving at the illegality. [Citations omitted.]"
       Lehman, 308 Kan. at 1093.

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       The State argues Lehman controls the present situation: "Surely if the State is not
precluded from filing a motion to correct an illegal sentence under these two theories
under Lehman, the State should likewise not be prevented from filing this type of motion
as an attempt to re-litigate an erroneous criminal history score." The Lehman court found
the sentence was illegal because the statutorily required length of postrelease supervision
had been imposed in error. Here the sentence was legal when first imposed based on the
provided PSI.


       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 Dickey and Weber, 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. However, in the future, the State can rely on the newly
discovered convictions should Schulze be convicted of another crime. See Jenkins v.
State, 32 Kan. App. 2d 702, 709-10, 87 P.3d 983 (2004).


       Sentence vacated and case remanded with directions to resentence based on the
first PSI report.




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