Neal v. State

Court of Appeals of Kansas

Neal v. State

971 P.2d 748, 25 Kan. App. 2d 705, 1998 Kan. App. LEXIS 754

CourtCourt of Appeals of Kansas

DecidedDecember 4, 1998

Docket79,921

StatusPublished

Cited by9 cases

This text of 971 P.2d 748 (Neal v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Neal v. State, 971 P.2d 748, 25 Kan. App. 2d 705, 1998 Kan. App. LEXIS 754 (kanctapp 1998).

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Opinion

Rulon, J.:

Petitioner Juan Jermaine Neal appeals the district court’s order vacating conversion of his indeterminate sentence under the Kansas Sentencing Guidelines Act (KSGA). Petitioner pled guilty to aggravated sexual battery (K.S.A. 21-3518) on July 13, 1993. Later, petitioner filed a motion for sentence conversion based on the Kansas Department of Corrections report, which stated petitioner had a crime severity level of 5. The State agreed petitioner’s severity level was 5 at the conversion hearing. But, the State later filed a motion to vacate the conversion, asserting petitioner’s severity level was either 3 or 4. The district court found petitioner’s severity level was 4, making him ineligible for conversion, and vacated the conversion.

When the State agrees to a defendant’s criminal history, even if the criminal history is incorrect, the sentence imposed based on that criminal history is not illegal because it is a proper sentence for the agreed upon grid block. Similarly, the State cannot challenge the severity level of petitioner’s crime after so stipulating *706 earlier. State v. Tolliver, 22 Kan. App. 2d 374, 379-80, 916 P.2d 725 (1996).

“It is true that an illegal sentence may be corrected at any time; however, pursuant to K.S.A. 22-3504, the law is well settled that one who, by his or her own acts, invites error cannot then complain or take advantage of it on appeal.” State v. McBride, 23 Kan. App. 2d 302, 304, 930 P.2d 618 (1996). The State argues McBride applies only to arguments raised on appeal, not to arguments raised with the district court. This is irrelevant in this case because under Tolliver, the challenged converted sentence was not illegal because the sentence imposed conformed to the presumptive sentence for the stated grid block. Here, there was no illegal sentence for the court to correct. We conclude the district court erred in granting the State’s motion to vacate conversion of petitioner’s sentence.

Reversed and remanded with instructions to the district court to reinstate the vacated conversion.

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Rulon, J.:

Petitioner Juan Jermaine Neal appeals the district court’s order vacating conversion of his indeterminate sentence under the Kansas Sentencing Guidelines Act (KSGA). Petitioner pled guilty to aggravated sexual battery (K.S.A. 21-3518) on July 13, 1993. Later, petitioner filed a motion for sentence conversion based on the Kansas Department of Corrections report, which stated petitioner had a crime severity level of 5. The State agreed petitioner’s severity level was 5 at the conversion hearing. But, the State later filed a motion to vacate the conversion, asserting petitioner’s severity level was either 3 or 4. The district court found petitioner’s severity level was 4, making him ineligible for conversion, and vacated the conversion.

When the State agrees to a defendant’s criminal history, even if the criminal history is incorrect, the sentence imposed based on that criminal history is not illegal because it is a proper sentence for the agreed upon grid block. Similarly, the State cannot challenge the severity level of petitioner’s crime after so stipulating *706 earlier. State v. Tolliver, 22 Kan. App. 2d 374, 379-80, 916 P.2d 725 (1996).

“It is true that an illegal sentence may be corrected at any time; however, pursuant to K.S.A. 22-3504, the law is well settled that one who, by his or her own acts, invites error cannot then complain or take advantage of it on appeal.” State v. McBride, 23 Kan. App. 2d 302, 304, 930 P.2d 618 (1996). The State argues McBride applies only to arguments raised on appeal, not to arguments raised with the district court. This is irrelevant in this case because under Tolliver, the challenged converted sentence was not illegal because the sentence imposed conformed to the presumptive sentence for the stated grid block. Here, there was no illegal sentence for the court to correct. We conclude the district court erred in granting the State’s motion to vacate conversion of petitioner’s sentence.

Reversed and remanded with instructions to the district court to reinstate the vacated conversion.

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Bluebook (online)

971 P.2d 748, 25 Kan. App. 2d 705, 1998 Kan. App. LEXIS 754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neal-v-state-kanctapp-1998.

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